Sanzotta v. Continuing Developmental Services, Inc.

—Order unanimously affirmed with costs. Memorandum: Defendant moved for summary judgment seeking dismissal of the complaint based on defendant’s alleged breach of contract and judgment on its counterclaim for rescission of agreements executed in connection with the transfer of plaintiffs business to defendant. Supreme Court properly denied defendant’s motion in part, dismissing only the second cause of action. Defendant failed to meet its burden of establishing as a matter of law that it is entitled to rescind the agreements based upon a unilateral mistake known to plaintiff at the time the agreements were *1048negotiated and left uncorrected by her (see, Sheridan Drive-In v State of New York, 16 AD2d 400, 405) or fraudulent misrepresentations made by plaintiff and her son with respect to the value of the business (see, Curran, Cooney, Penney v Young & Koomans, 183 AD2d 742, 743, lv denied 80 NY2d 757). Defendant also failed to meet its burden of establishing as a matter of law that the son acted as plaintiff’s agent during the negotiations (see, Skutt, Inc. v Goodwin, Ltd., 251 App Div 84, 86-87) and that plaintiff is bound by his representations (see, Harriss v Tams, 258 NY 229, 236; Adler v Helman, 169 AD2d 925, 926). (Appeal from Order of Supreme Court, Ontario County, Harvey, J. — Summary Judgment.) Present — Green, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.