This matter arose as a result of plaintiffs efforts to enforce a judgment, entered May 17, 1995, which, inter alia, rescinded the sale of defendant's accounting practice to plaintiff, directed payment of restitution damages to plaintiff in the amount of $113,989 with interest from May 29, 1994, awarded $700 costs to plaintiff enforceable by execution, and gave the parties until June 7, 1995 to complete their respective obligations thereunder. The judgment was rendered after trial wherein an advisory jury returned a verdict for plaintiff on his rescission claim. Essentially, the proof at trial was that the value of the practice at the time of the sale was materially misrepresented by defendant.
The trial court subsequently erred in rendering the order and judgment of commitment, entered as an order and a judgment on July 22 and 24, 1998, respectively, and in issuing the order, entered July 22, 1998, denying defendant's motion for renewal or relief from the final order of contempt, which had been entered November 13, 1996, and from the November 14, 1996 judgment, which superseded the May 1995 judgment, except as to the award of costs, and granted plaintiff execution on the damages award. With reference to the order and judgment of commitment, the trial court was not empowered to issue the order of commitment here insofar as it purported to punish defendant for his failure to pay restitution damages, the $700 award of costs, and interest thereon. Defendant's liability in this regard had been determined by the May 1995 judgment and the superseding November 1996 judgment, both enforceable by execution pursuant to CPLR article 52. Judiciary Law § 753 (A) (3) generally forbids the use of the court's civil contempt powers to enforce such judgments ( see, 4504 New Utrecht Ave. Corp. v. Pita Parlor, 143 A.D.2d 171, 172; Calvert v. Le Tam Realty Corp., 118 A.D.2d 426, 427), and none of the exceptions to the general rule are applicable here ( see, CPLR 5104). However, insofar as the order of commitment seeks to enforce the fines imposed by the contempt order, entered November 13, 1996, it should remain in effect, since such fines were not incorporated into any judgment enforceable by execution proceedings. This is true notwithstanding the fact that we vacate, infra, the award of restitution damages which the fines were intended to enforce; at such time as the fines were imposed, the damages award was a duly-issued, outstanding mandate of the court with which defendant had failed to comply.
In our view, the November 1996 judgment, which supersedes the May 1995 judgment with the exception of the latter's award of $700 costs, should be vacated. The circumstances herein pose an issue of unjust enrichment in that the court awarded plaintiff full restitution of the payments made for purchase of the accounting practice without adjustment for benefits realized by plaintiff from owning the practice for the period 1991-1995 or for the decline in value of the practice since the time of purchase. As a consequence, it appears impracticable if not impossible to restore the parties to the status quo ante, and vacatur of the substantive remedial portions of the judgments herein and remand to Supreme Court for further consideration of what would constitute an equitable remedy is the most prudent course.
It is within a court's inherent, equitable and discretionary powers to modify, in the interests of justice, an excessive award granted in a judgment ( see, Brosnan v. Behette, 186 A.D.2d 165, lv denied 81 N.Y.2d 706; Cervino v. Konsker, 91 A.D.2d 249, 253, appeal dismissed 59 N.Y.2d 761; Oppenheim v. Melnick, 34 A.D.2d 784, lv denied 27 N.Y.2d 730; Monette v. Bonsall, 29 A.D.2d 839; 10 Weinstein-Korn-Miller, N Y Civ Prac ¶ 5015.12), to "adjust the equities between the parties [such] that unjust enrichment is avoided" (CPLR 3004), to deny rescission or other "`equitable relief [where it] appears to be impossible or impracticable'" ( Ungewitter v. Toch, 31 A.D.2d 583, 584, affd 26 N.Y.2d 687, quoting Doyle v. Allstate Ins. Co., 1 N.Y.2d 439, 443), or, where plaintiff has established his entitlement to an impracticable equitable remedy, "`[to] award damages in lieu of the desired equitable remedy'" ( Lusker v. Tannen, 90 A.D.2d 118, 125, quoting Doyle v. Allstate Ins. Co., supra, at 443).