Appeal from a judgment of the District Court of Nassau County, Second District (Eugene H. Shifrin, Ct. Atty. Ref.), entered December 16, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $250.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $180; as so modified, the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover $300, which sum she had paid to defendant as a deposit on her purchase of defendant's used PVC fence. At a nonjury trial, the parties agreed that defendant had advertised a used four-foot-high PVC fence for sale over the Internet and that plaintiff had agreed to purchase the fence from defendant for $600 and had paid defendant a $300 deposit. Plaintiff testified that she had wanted the fence to surround a swimming pool; that after paying the deposit, she had made inquiries and learned that defendant's fence was not high enough to satisfy certain regulations pertaining to fences that enclose pools; and that she had therefore requested the return of her deposit. Defendant, who had refused to return the deposit, asserted that he had advised plaintiff in advance that her deposit was nonrefundable. Following the trial, judgment was awarded in favor of plaintiff in the principal sum of $250, and defendant appeals.

Plaintiff was not entitled to, in effect, obtain rescission of her agreement with defendant based on her mistake in contracting for the purchase of a fence that was too short for her needs. "Unilateral mistake alone is an insufficient basis for rescission of a contract" (Rivera v Dalbero, 2 Misc 3d 128[A], 2003 NY Slip Op 51697[U], *1 [App Term, 2d & 11th Jud Dists 2003]; see also Sanford/Kissena Owners Corp. v Daral Props., LLC, 84 AD3d 1210, 1212 [2011]).

The Uniform Commercial Code specifies that where, as here, a buyer has breached a contract for the sale of goods, absent other factors not present here, "the buyer is entitled to restitution of any amount by which the sum of his payments exceeds . . . twenty per cent of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller" (UCC 2-718 [2] [b]; see Santos v DeBellis, 28 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2010]). Here, the total amount plaintiff was obligated to pay under the contract was $600. As 20 percent of $600 equals $120, and as plaintiff had paid defendant $300, plaintiff was entitled to restitution of the amount by which her $300 payment exceeded $120, to wit, $180. To the extent that the judgment in favor of plaintiff exceeded $180, it failed to render [*2]substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1804, 1807).

Accordingly, the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $180.

Marano, J.P., Nicolai and LaSalle, JJ., concur.
Decision Date: December 20, 2013