Diaz v. Nine

Order and judgment unanimously reversed, with costs to the appellant, and plaintiffs’ motion for summary judgment denied. The provision of the contract that the “ Seller represents and warrants that basement may be lawfully occupied for dwelling purposes” is ambiguous and a trial of the issues is required. The notice of the department of housing and buildings of the City of New York that the premises were arranged and occupied as a multiple dwelling in violation of law is not determinative. The contract required that such a notice of violation should be complied with by the seller and the premises conveyed free of the violation. It is impossible to determine upon this motion that the violation could not have been removed by action of the seller prior to the agreed closing date. Upon the present record the plaintiffs have not sufficiently established the cause of action alleged in the complaint to entitle them to summary judgment. Present — Callahan, J. P., Breitel, Bastow, Botein and Rabin, JJ.