Curtis v. Chetrit

Order, Supreme Court, New York County (Emily Goodman, J.), entered October 9, 1996, which denied plaintiffs’ motion to substitute or add a party defendant on their cause of action for rescission, and granted defendants’ cross motion to dismiss such cause of action, unanimously affirmed, with costs.

Plaintiffs’ cause of action for rescission of the subject stock purchase agreement, based on defendants’ alleged misrepresentation that they had not employed a broker and plaintiffs’ resulting potential liability for a broker’s commission, was properly dismissed upon the brokers’ discontinuance of their action with prejudice and without demanding anything from plaintiffs. Plaintiffs’ motion to substitute or add a party defendant to their cause of action for rescission, made before the brokers’ discontinuance of their action, was properly denied as academic. We note that the granting of defendants’ cross motion was not a violation of the single motion rule (CPLR 3211 [e]) since defendants’ original motion to dismiss had been held in abeyance pending the outcome of the brokers’ action. Concur—Sullivan, J. P., Milonas, Wallach, Williams and Colabella, JJ.