Finally, CCT contends that unclean hands bars Global Crossing's equitable remedy of rescission. See Tepfer v. Berger, 501 N.Y.S.2d 106, 107 (N.Y.App.Div. 1986); Pecorella v. Greater Buffalo Press, Inc., 486 N.Y.S.2d 562, 563 (N.Y.App.Div. 1985). Global Crossing concedes that the VoIP Bundle included the Western European landline destinations as Zero-Rated Destinations.
The plaintiff met his prima facie burden of establishing his entitlement to judgment as a matter of law dismissing the defendants' counterclaim by demonstrating that he did not misappropriate any trade secrets or engage in any fraudulent activity in setting up a competing medical practice ( see Walter Karl, Inc. v Wood, 137 AD2d 22, 27; ProHealth Care Assoc., LLP v April, 4 Misc 3d 1017 [A], 2004 NY Slip Op 50919[U]). In opposition, the defendants failed to raise a triable issue of fact. Furthermore, the plaintiff met his prima facie burden of establishing that the doctrine of unclean hands, raised in the defendants' third affirmative defense, was inapplicable because the plaintiff did not act inequitably in establishing his competing medical practice ( see Tepfer v Berger, 119 AD2d 668, 669). In opposition, the defendants failed to raise a triable issue of fact.
While "[indigency is not a prerequisite to an award of counsel fees" ( DeCabrera v Cabrera-Rosete, 70 NY2d at 881), the defendant will be receiving a substantial equitable distribution award from the plaintiff, in addition to five years of maintenance. Furthermore, in misrepresenting her income for the purpose of increasing the plaintiffs obligation to support her, the defendant forfeited any entitlement she might otherwise have had to this form of equitable relief ( see Tepfer v Berger, 119 AD2d 668, 669; Haskins v Thomajan, 99 AD2d 463, 463-464; Farino v Farino, 88 AD2d 902; Levy v Braverman, 24 AD2d 430). The plaintiff's remaining contention is without merit.
In this respect, a court has "inherent power to modify its equitable directives" ( Wellbilt Equip. Corp. v Red Eye Grill, supra at 411). However, when equitable relief is sought, as Barrow seeks it here, "moral considerations of fundamental importance require that the litigant come into court with 'clean hands'" ( Tepfer v Berger, 119 AD2d 668, 669, quoting Pecorella v Greater Buffalo Press, 107 AD2d 1064, 1065; see Levy v Braverman, 24 AD2d 430; see e.g. Corporacion Nacional del Cobre de Chile v Hirsch, 242 AD2d 183).
The IAS Court properly dismissed plaintiff's first cause of action seeking rescission of the parties' lease based upon fraudulent inducement and the third and sixth causes of action seeking lost profits and alleging a constructive eviction based upon the defendant's purported failure to repair the exterior window frames at the subject premises where the plaintiff, at the bench trial, failed to produce any credible evidence establishing that it was prohibited from operating a paralegal school at the premises because of the condition of the exterior window frames in violation of the parties' written lease agreement. The plaintiff was not entitled to rescission of the lease because of its inequitable conduct in having abandoned the premises in an unsuccessful attempt to avoid rent payments (see, Tepfer v Berger, 119 A.D.2d 668). Plaintiff also failed to prove a constructive eviction by a preponderance of the credible evidence showing that it was substantially and materially deprived of the beneficial use and enjoyment thereof (see, Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83). The admitted absence of any violations of record by the New York City Buildings Department, New York City Fire Department, New York City Health and Sanitation Departments, or the New York State Department of Education, when combined with plaintiff's failure to complain about the condition of the exterior window frames at the subject premises after an independent contractor had performed the required repairs, as requested by the plaintiff, at a cost of $5,400 to the defendant, and prior to the plaintiff having abandoned the premises, support the trial court's determination that the plaintiff had failed to establish a prima facie case for either legal or equitable relief.
A court of equity will refuse affirmative aid to a litigant who comes into court with unclean hands such as where the litigant seeks affirmative relief based on an illegal contract or other illegal conduct. The denial of affirmative relief under such circumstances is a matter of public policy to protect the integrity of the courts, as well as a disability to the litigant with unclean hands (Tepfer v Berger, 119 A.D.2d 668, 669; Pecorella v Greater Buffalo Press, 107 A.D.2d 1064, 1065; Haskins v Thomajan, 99 A.D.2d 463, 464; Simmons v Benn, 96 A.D.2d 507, 508; Farino v Farino, 88 A.D.2d 902, 903). MONTELEONE, J.P., and SCHOLNICK, J., concur; ARONIN, J., dissents in a separate memorandum opinion.
Moreover, the plaintiff was not precluded from obtaining the equitable relief she sought on the ground that her conduct was inequitable. Although a court will deny equitable relief to a litigant who has himself been guilty of inequitable conduct with reference to the subject matter of the transaction in suit (see, Tepfer v. Berger, 119 A.D.2d 668, 669; Levy v. Braverman, 24 A.D.2d 430) the record here does not indicate that the plaintiff has been guilty of such inequitable conduct. Kunzeman, J.P., Weinstein, Kooper and Balletta, JJ., concur.
As an equitable remedy, a preliminary injunction should be granted only where the balance of the equities tips in favor of the movant (Ulster Home Care v. Vacco, 255 A.D.2d 73, 76, 688 N.Y.S.2d 830 [3d Dept 1999] ). Moreover, “[w]here a litigant has [it]self been guilty of inequitable conduct with reference to the subject matter of the transaction in suit, a court of equity will refuse [it] affirmative aid” (Levy v. Braverman, 24 A.D.2d 430, 260 N.Y.S.2d 681 [1st Dept 1965] ; see Tepfer v. Berger, 119 A.D.2d 668, 501 N.Y.S.2d 106 [2d Dept 1986] [“moral considerations of fundamental importance require that the litigant come into court with clean hands' “] ). Defendants' cross motion for declaratory relief, which amounts to a premature motion for summary judgment on a then-unpleaded claim for declaratory relief, is denied as procedurally defective.
"When equitable relief is sought, moral considerations of fundamental importance require that the litigant come into court with clean hands.'" ( Tepfer v Berger, 119 AD2d 668, 669 [2d Dept 1986]).
The Law "[W]hen equitable relief is sought . . . "moral considerations of fundamental importance require that the litigant come into court with clean hands"'" (Thompson v 76 Corp. , 37 AD3d 450, 453, quoting Tepfer v Berger, 119 AD2d 668, 669, quoting Pecorella v Greater Buffalo Press, 107 AD2d 1064, 1065). "Unclean hands in participating in a course of conduct of deception and deceit is an effective bar to [an action]" ( Chun Wang v Chun Wong, 163 AD2d 300, 302, appeal denied 77 NY2d 804, cert denied 501 US 1252[1991]).