Opinion
2013-01-23
In the Matter of Shmouel TOLEDANO, etc., petitioner-plaintiff-respondent, v. Yoram ELIYAHU, et al., respondents-defendants-appellants, et al., defendant-respondent.
Naidich Wurman Birnbaum & Maday, LLP, Great Neck, N.Y. (Robert P. Johnson of counsel), for respondents-defendants-appellants. Jaspan Schlesinger LLP, Garden City, N.Y. (Steven R. Schlesinger, Marci S. Zinn, and Jared A. Kasschau of counsel), for petitioner-plaintiff-respondent.
Naidich Wurman Birnbaum & Maday, LLP, Great Neck, N.Y. (Robert P. Johnson of counsel), for respondents-defendants-appellants. Jaspan Schlesinger LLP, Garden City, N.Y. (Steven R. Schlesinger, Marci S. Zinn, and Jared A. Kasschau of counsel), for petitioner-plaintiff-respondent.
In a hybrid proceeding, inter alia, pursuant to Business Corporation Law § 1104(a) for the judicial dissolution of certain corporations, and action, among other things, to recover damages for breach of contract, the respondents/defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered July 27, 2011, as granted that branch of the petitioner/plaintiff's motion which was for summary judgment dismissing the sixth counterclaim for rescission of an agreement between the petitioner/plaintiff and the respondent/defendant Yoram Eliyahu.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the petitioner/plaintiff's motion which was for summary judgment dismissing the sixth counterclaim for rescission of an agreement between the petitioner/plaintiff and the respondent/defendant Yoram Eliyahu. In response to the petitioner/plaintiff's prima facie showing that the agreement at issue should not be set aside ( see Reiner v. Reiner, 59 A.D.3d 420, 874 N.Y.S.2d 143), the respondents/defendants failed to raise a triable issue of fact as to whether the agreement was executed under a mutual mistake or a unilateral mistake induced by a fraudulent misrepresentation by the petitioner/plaintiff ( see Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 698 N.Y.S.2d 615, 720 N.E.2d 892;Matter of Gould v. Board of Educ. of Sewanhaka Cent. High School Dist., 81 N.Y.2d 446, 453, 599 N.Y.S.2d 787, 616 N.E.2d 142;Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 407, 176 N.Y.S.2d 259, 151 N.E.2d 833;County of Orange v. Grier, 30 A.D.3d 556, 557, 817 N.Y.S.2d 146;Almap Holdings v. Bank Leumi Trust Co. of N.Y., 196 A.D.2d 518, 601 N.Y.S.2d 319;Sunlight Funding Corp. v. Singer, 146 A.D.2d 625, 626, 536 N.Y.S.2d 533;Restatement [Second] of Contracts § 151, Comment a).