N.Y. CVP Law § 3004

§ 3004. Where restoration of benefits before judgment unnecessary. A\nparty who has received benefits by reason of a transaction that is void\nor voidable because of fraud, misrepresentation, mistake, duress,\ninfancy or incompetency, and who, in an action or by way of defense or\ncounterclaim, seeks rescission, restitution, a declaration or judgment\nthat such transaction is void, or other relief, whether formerly\ndenominated legal or equitable, dependent upon a determination that such\ntransaction was void or voidable, shall not be denied relief because of\na failure to tender before judgment restoration of such benefits; but\nthe court may make a tender of restoration a condition of its judgment,\nand may otherwise in its judgment so adjust the equities between the\nparties that unjust enrichment is avoided.\n