Opinion
July 25, 1994
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion for "reverse" summary judgment in favor of the plaintiff Sonny Mawardi is denied.
The plaintiff Sonny Mawardi granted an easement over his property to the defendants Robert Kuehlwein and Rocco Moretto and would not have done so had he known that they intended to build a housing development on a neighboring lot. He received $75,000 in return for granting the easement. The project was later abandoned, and other project participants were directed to reconvey the site of the development to the parties from whom it had been purchased (see, Libassi v. Chelli, 206 A.D.2d 509 [decided herewith]). Mawardi alleges that, in the meantime, he sold his property at a price which was significantly depressed as a result of the presence of the easement which he had been fraudulently induced to grant.
Mawardi has no duty to elect his remedy until the time of trial (see, Baratta v. Kozlowski, 94 A.D.2d 454, 464). The defendants have no right to compel him to choose rescission over damages for fraud prior to trial. Under these circumstances, it was error to compel Mawardi to accept the remedy of rescission at this time. Bracken, J.P., Sullivan, Krausman and Goldstein, JJ., concur.