Opinion
May 6, 1999
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
CPLR 3004 does not avail plaintiff since, by its terms, it applies only to rescissions that are sought because of "fraud, misrepresentation, mistake, duress, infancy or incompetency", whereas here plaintiff seeks to rescind on the basis of a claimed contractual right to repudiate ( Walker v. Arpindo Corp., 194 A.D.2d 503; see generally, Cox v. Stokes, 156 N.Y. 491, 506-507). In any event, we perceive no equities warranting plaintiff's retention of the monies it received under the settlement it now seeks to rescind, and, contrary to its assertion, the "undisputed" monies it received are indeed disputed by defendants.
Concur — Williams, J. P., Rubin, Mazzarelli, Andrias and Buckley, JJ.