Pescatori v. Nassau Dance Studio Inc. , 305 N.Y.S.2d 393 ( 1969 )

I. Stanley Rosenthal, J:

Plaintiff brings this action to recover moneys paid pursuant to a contract entered into with the defendant for private and semi-private dance lessons at an agreed price of $4,995. After some instruction plaintiff became dissatisfied with the instruction and requested the return of the money paid for unused lessons.

Plaintiff relies on subdivision 2 of section 394-b of the General Business Law which provides that such contracts, are not valid and enforceable where the payments exceed $500 and the payments are not made in installments so computed that the total amounts so paid shall not exceed by more than 5% the prorated cost of the units of instruction or use actually received thereunder at the time the last payment is made. Plaintiff now moves for summary judgment on his first cause of action, relying on the case of Best v. Arthur Murray Town & Country Dance Club (60 Misc 2d 660).

The defendant’s contention that subdivision 2 of section 394-b of the General Business Law does not apply because the plaintiff was given a 10% discount by paying cash is rejected, as such an exception does not appear in the statute. The restriction imposed by the General Business Law is sufficient to warrant the rescinding* of such contract, and the plaintiff’s motives in seeking to rescind the contract are immaterial. (Goldstein v. Stern, 32 Misc 2d 779, affd. 18 A D 2d 672.)

Plaintiff’s motion for summary judgment is accordingly granted.