Barefoot v. West Point-Pepperell, Inc.

—Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about September 28, 1994, which denied [282] defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (5), unanimously affirmed, with costs. The "rule of promptness” generally applicable to rescission claims does not control this action (see, Wolf v National City Bank, 170 App Div 565, 570). As was discussed in detail in a Federal action brought by different parties similarly situated to plaintiffs herein against the same defendant parties as in this case, an exception to the "rule of promptness” prevails in situations such as this, where plaintiffs would have to return nothing to defendants in the event of rescission (Allen v West Point-Pepperell, 908 F Supp 1209, 1218-1220). We have considered defendants’ other arguments and find them to be without merit. Concur — Murphy, P. J., Rosenberger, Wallach, Asch and Tom, JJ.