Westphal v. Real Estate Int'l, Ltd.

• Decision Date: 16 January 2018
• Docket Number: 5462 5463 Index 7844/07 381176/07
• Citation: 157 A.D.3d 546,66 N.Y.S.3d 607 (Mem)
• Parties: Jeanette WESTPHAL, etc., Plaintiff–Respondent, Leroy Famous, Plaintiff, v. REAL ESTATE INTERNATIONAL, LTD., et al., Defendants–Appellants, Frank Giordano, Defendant. [And Another Action]
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 546

66 N.Y.S.3d 607 (Mem)

Jeanette WESTPHAL, etc., Plaintiff–Respondent,Leroy Famous, Plaintiff,

v. REAL ESTATE INTERNATIONAL, LTD., et al., Defendants–Appellants,Frank Giordano, Defendant.[And Another Action]

5462 5463 Index 7844/07 381176/07

Supreme Court, Appellate Division, First Department, New York.

ENTERED: JANUARY 16, 2018

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellants.

Jeanette M. Westphal, P.C., New York (Jeanette M. Westphal of counsel), for respondent.

Friedman, J.P., Mazzarelli, Kapnick, Webber, Moulton, JJ.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about September 9, 2015, which, after a nonjury trial, found for plaintiff's decedent Ella Reid, and rescinded the contract at issue, and order, same court and Justice, entered on or about November 18, 2015, which, inter alia, sua sponte modified the court's prior order to direct that title to the property at issue reverted to decedent, unanimously affirmed, without costs.

There is no basis to disturb the court's conclusion that defendants engaged in overreaching by taking advantage of the plaintiff's decedent and inducing her to execute an unfavorable contract, warranting rescission of the contract (see generally Skolnick v. Goldberg, 297 A.D.2d 18, 20, 746 N.Y.S.2d 296 [1st Dept. 2002] ).

The order entered November 18, 2015 is not void. Decedent's sister had been appointed administrator of decedent's estate prior to the order, and defendants have not demonstrated prejudice (see e.g. Caridi v. Durst, 228 A.D.2d 396, 644 N.Y.S.2d 733 [1st Dept. 1996] ).