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Decided on June 11, 2007
Supreme Court, Westchester County

19344/01
APPEARANCES: DAVID O. WRIGHT, ESQ. Attorney for Plaintiff 1820 Commerce Street Yorktown Heights, New York 10598 McCUSKER, ANSELMI, ROSEN, CARVELLI & WALSH, P.A. By: Paul F. Carvelli, Esq. Attorneys for Defendant ExxonMobil Corporation 156 West 56th Street, Suite 1702 New York, New York 10019 PAUL, HASTINGS, JANOFSKY & WALKER LLP By: Paul R. Dehmel, Esq. Attorneys for Defendants Trammell Crow Corporate Services, Inc., Eric Lefcourt and Jack Walsdorf 75 East 55th Street New York, New York 10017 Alan D. Scheinkman, J.
This is a most unusual case and comes before this Court with an atypical litigation history. Plaintiff claims that Defendants induced it into contracting to sell some of its land. Plaintiff charges that Defendants had no intention of honoring the contract but, instead, used the contract to induce Plaintiff to sell an even larger amount of land at what Plaintiff asserts was then a below-market price. Plaintiff suggests that the value of the land has decreased since it was sold by Plaintiff in
December 2000.[FN1] Plaintiff goes [*2]so far as to state that the property "is no longer worth" what Plaintiff received for it. Yet Plaintiff, rather than being pleased that the deal turned out better than it perhaps it originally appeared, seeks to rescind it, notwithstanding its acknowledgment that "it would be difficult to unscramble the eggs'", and to collect money damages. Defendants seem to agree that the property is no longer worth what was paid for it and allege that they are willing to give it back but say that Plaintiff does not have the financial ability to pay the money back. Plaintiff acknowledges that it presently does not have the money but asserts that it could raise it, perhaps by borrowing against the property. It seems illogical that Plaintiff could borrow more against the property than it is worth but that is no more illogical than an effort to rescind a transaction which, no matter how intended, seems to have ended up working out favorably to Plaintiff.
INTRODUCTION
This action was commenced in the New York State Supreme Court, Westchester County in late 2001, seeking money damages for duress, undue influence, fraud, breach of lease and breach of contract. Defendants removed the action to the United States District Court for the Southern District of New York, invoking federal jurisdiction on the basis of diversity of citizenship. Plaintiff did not contest the propriety of the removal. Once in federal court, Defendants moved, pre-answer, to dismiss the action. On April 26, 2002, United States District Judge Colleen McMahon ruled that Defendants' motion to dismiss should be granted as to all but one claim. Judge McMahon denied Plaintiff's request to amend its complaint so as to assert a claim for rescission.
Plaintiff, apparently recognizing that its sole remaining claim was doomed to failure, moved to dismiss it, apparently for the purpose of accelerating appellate review by the United States Court of Appeals for the Second Circuit of Judge McMahon's dismissal of the other claims. While it may be unusual for a party to seek to dismiss one of its claims, the case took an even stranger turn. In its appellate brief, Plaintiff disclosed that two of its limited partners and one of the Defendants were, at
time the action was filed, residents of the same state [FN2]

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