601 N.Y.S.2d 319 | N.Y. App. Div. | 1993
In an action, inter alia, for rescission of a contract based upon fraud and mistake, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Roncallo, J.), entered April 23, 1991, which, after a nonjury trial, dismissed the plaintiffs’ complaint and awarded the defendant attorney’s fees, disbursements and costs.
Ordered that the order and judgment is affirmed, with costs.
The plaintiffs failed to establish by clear and convincing evidence the necessary elements of a cause of action to rescind a contract on the ground of fraud (see, Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403, 406-407; Simcuski v Saeli, 44 NY2d 442, 452; 60 NY Jur 2d, Fraud and Deceit, § 11, at 446). Specifically, the plaintiffs failed to prove that the defendant misrepresented a material fact or intentionally concealed
Additionally, the plaintiffs failed to prove either mutual mistake or the necessary elements involving unilateral mistake which would require the rescission of the contract and return of the security (see, Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 AD2d 203, 214-215; McClain Realty v Rivers, 144 AD2d 216, 218; 21 NY Jur 2d, Contracts, § 121, at 528, 529; Calamari & Perillo, Contracts § 9-26, at 379 [3d ed 1987]).
The trial court did not err in awarding the defendant attorney’s fees, disbursements and costs based upon the clear provisions of the guaranty and the security agreement (see, Hooper Assocs. v AGS Computers, 74 NY2d 487; Breed, Abbott & Morgan v Hulko, 139 AD2d 71, affd 74 NY2d 686). Bracken, J. P., Lawrence, Fiber and O’Brien, JJ., concur.
