Millman v. Brownlee

In an action, inter alia, to rescind two contracts of sale and a deed, the defendants appeal, as limited by their brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Westchester County (Dachenhausen, J.), entered March 20, 1987, which, inter alia, rescinded the conveyance and awarded counsel fees to the plaintiff, after a nonjury trial.

Ordered that the order and judgment is modified, on the law, by deleting the provision thereof which awarded the plaintiff "the sum of $17,500.00 as and for plaintiff’s expenses, counsel fees”; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a reassessment of disbursements and the entry of an appropriate amended judgment.

We agree with the trial court’s conclusion, for the reasons expressed by it, that the contracts herein were unconscionable, that the deed delivered thereon must be rescinded, and the conveyance must be set aside. However, inasmuch as there is no contractual or applicable statutory provision for the award of counsel fees, the court’s award thereof was error (see, Matter of Green [Potter], 51 NY2d 627, 629-630, rearg denied 52 NY2d 1073), notwithstanding that the instant action sounded in equity (see, Norstar Bank v Stradford, 125 AD2d 298). Mollen, P. J. Thompson, Bracken and Brown, JJ., concur.