N.Y. Civil Practice Law & Rules § 3004: Where restoration of benefits before judgment unnecessary

§ 3004. Where restoration of benefits before judgment unnecessary. A

party who has received benefits by reason of a transaction that is void

or voidable because of fraud, misrepresentation, mistake, duress,

infancy or incompetency, and who, in an action or by way of defense or

counterclaim, seeks rescission, restitution, a declaration or judgment

that such transaction is void, or other relief, whether formerly

denominated legal or equitable, dependent upon a determination that such

transaction was void or voidable, shall not be denied relief because of

a failure to tender before judgment restoration of such benefits; but

the court may make a tender of restoration a condition of its judgment,

and may otherwise in its judgment so adjust the equities between the

parties that unjust enrichment is avoided.