SANZOTTA v. CONTINUING DEVELOPMENTAL SERVICES INC (1999)

 Defendant moved for summary judgment seeking dismissal of the complaint based on defendant's alleged breach of contract and judgment on its counterclaim for rescission of agreements executed in connection with the transfer of plaintiff's business to defendant.   Supreme Court properly denied defendant's motion in part, dismissing only the second cause of action.   Defendant failed to meet its burden of establishing as a matter of law that it is entitled to rescind the agreements based upon a unilateral mistake known to plaintiff at the time the agreements were negotiated and left uncorrected by her (see, Sheridan Drive-In v. State of New York, 16 A.D.2d 400, 405, 228 N.Y.S.2d 576) or fraudulent misrepresentations made by plaintiff and her son with respect to the value of the business (see, Curran, Cooney, Penney v. Young & Koomans, 183 A.D.2d 742, 743, 583 N.Y.S.2d 478, lv. denied 80 N.Y.2d 757, 589 N.Y.S.2d 308, 602 N.E.2d 1124).   Defendant also failed to meet its burden of establishing as a matter of law that the son acted as plaintiff's agent during the negotiations (see, O.A. Skutt, Inc. v. J. & H. Goodwin, Ltd., 251 App.Div. 84, 86-87, 295 N.Y.S. 772) and that plaintiff is bound by his representations (see, Harriss v. Tams, 258 N.Y. 229, 236, 179 N.E. 476;  Adler v. Helman, 169 A.D.2d 925, 926, 564 N.Y.S.2d 828).

Order unanimously affirmed with costs.

MEMORANDUM: