Opinion
February 28, 1994
Appeal from the Supreme Court, Nassau County (Lockman, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
In settlement of the plaintiff's breach of contract claim, the defendants agreed to pay him $60,000 in three installments. After making two payments totalling $40,000, the defendants defaulted on the final payment.
On appeal, the defendants contend that, upon their default, the stipulation became void by its own terms and that, therefore, CPLR 3004 does not apply. Thus, the defendants contend that the plaintiff must repay the $40,000 before he can maintain an action for rescission. We disagree.
Our review of the record supports the plaintiff's contention that the defendants never intended to pay the full amount stipulated. Under these circumstances, the court properly exercised its discretion in ruling that the plaintiff was not obliged to repay the sums already received by him in order to seek rescission (see, CPLR 3004; Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40; Skipworth v. Cooper, 37 A.D.2d 906; Sheridan Drive-In v. State of New York, 16 A.D.2d 400). Thompson, J.P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.