Appeal by plaintiff from a small claims judgment of the Civil Court, Richmond County (P. Straniere, J.), entered September 24, 2002, in favor of defendant dismissing plaintiffs claim.

Judgment unanimously affirmed without costs.

In this small claims action, plaintiff sought to recover a $1,000 deposit she paid to defendant. The contract set forth that defendant was to provide and install a white cedar wood fence on plaintiff's property. When the fence was delivered, plaintiff rejected same as allegedly nonconforming. The instant action presented issues of credibility which were properly determined by the lower court and should notbe overturned on appeal (see Jones v Hart, AD2d 297 [1996]; DiSalvo v Ordway, 208 AD2d 798 [1994]). Unilateral mistake alone is an insufficient basis for rescission of a contract (see 22 NY Jur 2d, Contracts § 126; Surlak v Surlak, 95 AD2d 371 [1983]). Therefore, plaintiff's mistaken belief that the white cedar fence which she ordered from defendant was white in color is not enough to rescind the contract. Accordingly, the lower court properly dismissed plaintiff's claim.
Decision Date: December 22, 2003