Equiptex Industrial Products Corp. v. Paulucci ( 1991 )

In an action to recover damages for breach of contract for the sale of real property, the defendant Andrew Paulucci, doing business as E-Z Folding & Binding Co., appeals from a judgment of the Supreme Court, Westchester County (Marbach, J.), dated August 8, 1988, which, after a nonjury trial, is in favor of the plaintiff and against him in the principal sum of $45,000.

Ordered that the judgment is affirmed, with costs.

The plaintiff purchaser sought, inter alia, return of its deposit plus the costs of title examination on the ground that the defendant seller was unable to convey marketable title because of certain easements encumbering the subject property. On a prior appeal, we reversed the trial court’s granting of summary judgment to the plaintiff and remitted for a trial, finding there were questions of fact as to whether these easements rendered title unmarketable (see, Equiptex Indus. Prods. Corp. v Paulucci, 133 AD2d 440). Upon review of the testimony, we find no reason to disturb the trial court’s finding that the easement for ingress and egress running the length of the southern boundary of the property and shared with the adjoining landowner was an encumbrance rendering title unmarketable (see, Rhodes v Astro-Pac, Inc., 51 AD2d 656, affd 41 NY2d 919). The evidence established that the plaintiff did not agree to take subject to the easement. Thompson, J. P., Kunzeman, Lawrence and Rosenblatt, JJ., concur.