Barasky v. Huttner

—In an action to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated October 21, 1993, which, upon an order granting the plaintiff’s motion for summary judgment, is in favor of the plaintiffs and against them in the principal sum of $21,615. The plaintiffs’ notice of appeal from the order dated October 6, 1993, is deemed a premature notice of appeal from the judgment (CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

The plaintiffs contracted with the sellers to purchase a parcel of real estate. Under the terms of the contract, the sellers were required to convey marketable title. The plaintiffs made a prima facie showing that the subject premises lacked access. Lack of legal access renders title unmarketable (Pollak v State of New York, 41 NY2d 909). It was thereupon incumbent upon the sellers to raise a triable issue of fact that their title was marketable. Upon our review of the record, we conclude that they failed to make such a showing. Accordingly, the plaintiffs were entitled to summary judgment for the return of their down payment and for reimbursement for related expenses pursuant to the terms of the - contract. Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.