Leibevic v. Bronstein

— Judgment unanimously affirmed with costs. Memorandum: The record supports the court’s finding that during operation of the partnership, defendant engaged in conduct tantamount to fraudulent concealment and breach of fiduciary responsibilities. Such conduct would have warranted a dissolution (see, Partnership Law §63 [1] [c], [d]). The equitable remedy of rescission may be exercised where a party has committed fraudulent acts or a breach of the agreement during performance (see generally, 22 NY Jur 2d, Contracts, §§ 415, 435) and, in this instance, the court properly awarded rescission and a return of plaintiffs capital investment pursuant to section 70 of the Partnership Law. (Appeal from second amended judgment of Supreme Court, Erie County, Joslin, J. —breach of contract.) Present — Dillon, P. J., Callahan, Green, Pine and Balio, JJ.