Allegations of Mutual Mistake in Counterclaim and Affirmative Defense Not Made With Requisite Particularity

The Second Department determined the allegations of mutual mistake were not made with the requisite particularity and the related counter claim and affirmative defense were properly granted:

“A claim of mutual mistake is stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . Absent fraud, “the mistake shown must be one made by both parties to the agreement, so that the intentions of neither are expressed in it” … . “A claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b)” …, which provides that “where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail.” Ultimately, the proponent of reformation based on mutual mistake must demonstrate the particulars of the actual agreement intended by the parties, based on the particularized allegations in the complaint… . Friedland Realty Inc v 416 W LLC, 2014 NY Slip Op 06052, 2nd Dept 9-10-14