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ALTHOUGH PLAINTIFF-SELLER MAY HAVE THOUGHT THE PARCEL OF REAL PROPERTY SHE SOLD WAS SMALLER THAN IT ACTUALLY WAS, DEFENDANT-BUYER WAS NEVER UNDER THAT IMPRESSION; THE COMPLAINT ALLEGING THE DEAL SHOULD BE RESCINDED BASED ON MUTUAL MISTAKE SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court and granting defendant’s motion for summary judgment dismissing the complaint, determined the plaintiff-seller of real property did not demonstrate the sale should be rescinded based upon mutual mistake. Plaintiff alleged she intended to transfer 20 acres but the deed described a 39-acre parcel. The parcel, however, was described in feet, not acres, and defendant was never under the impression the parcel was 20 acres in size. There was no “mutual mistake:”

… [E]ven if plaintiff misunderstood the size of the parcel she ultimately conveyed in the corrected deed, she was bound by the contents of a deed she executed absent fraud or other wrongdoing by defendant that she does not suggest occurred, and any unilateral mistake on her part as to the acreage being conveyed by it “resulted from [her] negligence in failing to take the means readily accessible of checking” its property description … . Williams v Sowle, 2022 NY Slip Op 05914, Third Dept 10-20-22

Practice Point: Here plaintiff-seller may have thought the parcel of land she sold to defendant was smaller than it actually was. But defendant was never under that impression. Therefore the sale could not be rescinded based upon “mutual mistake.”

 

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