Opinion
October 20, 1966
Judgment entered May 13, 1966 and order entered May 9, 1966, granting plaintiffs' motion for summary judgment pursuant to CPLR 3212 in action to recover moneys paid under scaffolding equipment construction contract, unanimously reversed, on the law, with $50 costs and disbursements to defendant-appellant, the judgment vacated and the motion denied, with leave to plaintiffs to apply to Special Term for leave to serve an amended complaint, if so advised. Plaintiffs, on the present showing, have no viable cause of action for rescission. Plaintiffs would not have a right to rescind so long as the nature of the transaction, i.e., the installation of facilities integrated into and designed for a particular building, does not lend itself to a substantial restoration to the status quo ante of the breaching contractor. (Restatement, Contracts, § 349, incl. Comments; 17 Am.Jur.2d, Contracts, § 512 et seq., especially § 514; 10 N.Y. Jur., Contracts, §§ 433-434.) The rule as stated in Callanan v. Keeseville, Ausable Chasm Lake Champlain R.R. Co. ( 199 N.Y. 268, 284-285, 286-287) is not otherwise. It was there observed that the equitable remedy of rescission was conditional and not available where there remained an adequate remedy at law. In this connection, defendant's discussion of rescission in sales of personal property and "unilateral rescission" is irrelevant. Of course, plaintiffs may be entitled to recover damages at law for the alleged two-year delay in obtaining official approval of the installation. Such damages, in a proper case, may include damages for the delay itself and the installation of substitute equipment. For this reason, plaintiffs are entitled to apply to Special Term for leave to serve an amended complaint to include a cause of action for damages, if so advised. In passing, it is observed that the affidavits on both sides were deficient in setting forth evidentiary facts, as distinguished from bald conclusions, to establish either the operability or the inoperability of the equipment installed by defendant.
Concur — Breitel, J.P., McNally, Stevens and Capozzoli, JJ.