Sciuto v. Iannucci Food Corp.

In an action for rescission of a contract, the defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Yachnin, J.), entered December 24, 1993, as, after a nonjury trial, is in favor of the plaintiffs and against the defendants Iannucci Food Corp. and Iannucci Realty Corp. in the principal sum of $79,420.76. Ordered that the appeal of the defendant Francesco Iannucci is dismissed, without costs or disbursements, since he is not aggrieved by the portion of the judgment appealed from (see, CPLR 5511); and it is further, Ordered that the judgment is affirmed insofar as appealed from, with costs. Failure of consideration gives an aggrieved party the right to rescind a contract (see, 6 Williston, Contracts § 814, at 10 [3d ed 1961]; see also, Fugelsang v Fugelsang, 131 AD2d 810, 812). The failure of consideration on the part of the appellants warrants rescission of the contract of sale in this case. The appellants’ remaining contentions are without merit. O’Brien, J. P., Pizzuto, Joy and Florio, JJ., concur.