Bronen v. New York Abstract Co.

• Decision Date: 29 October 1963
• Citation: 243 N.Y.S.2d 664,19 A.D.2d 821
• Parties: Benjamin BRONEN and Rose Bronen, Plaintiffs-Respondents, v. NEW YORK ABSTRACT COMPANY Inc. and Security Title & Guaranty Company, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 664

243 N.Y.S.2d 664

19 A.D.2d 821

Benjamin BRONEN and Rose Bronen, Plaintiffs-Respondents, v. NEW YORK ABSTRACT COMPANY Inc. and Security Title & Guaranty Company, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Oct. 29, 1963.

J. Datler, New York City, for plaintiffs-respondents.

M. Neumann, New York City, for defendants-appellants.

Before BOTEIN, P. J., and McNALLY, STEVENS, STEUER and BASTOW, JJ.

PER CURIAM.

Order, entered January 3, 1963, denying defendant's motion and plaintiff's cross-motion for summary judgment, unanimously modified on the law, to the extent of granting defendants' and motion with $10 costs, and, as so modified, affirmed, with $20 costs and disbursements to defendants-appellants. The complaint alleges defendant New York Abstract Company Inc. (Abstract) certified and defendant Security Title & Guaranty Company (Security) insured good and marketable title and freedom from encumbrances of the premises herein. The deed was delivered March 13. 1958. The certificate of title of Abstract was issued January 15, 1958 and amended March 13, 1958. The title policy of Security is dated March 13, 1958. Security insures against 'a claim of title or incumbrance prior in date to this policy and thereby insured against'. Prior to March 13, 1958 the building on the land was legal. The building became illegal by reason of the subdivision contemplated by the contract of sale and effected by the deed delivered on March 13, 1958. The certificate of Abstract accurately reflected the records of Municipal Departments as to the premises on the date thereof, January 15, 1958, and thereafter to March 13, 1958, the date of delivery of the deed. The coverage of the policy of Security dated March 13, 1958 does not include the zoning violation effected the same day by the delivery of the deed. Moreover, the policy (par. 10, subd. H) expressly excludes from coverage failure to comply with the zoning law. In addition, a condition precedent of the policy has not materialized, to wit: a final determination in a court of competent jurisdiction adverse to plaintiffs' title upon a lien or encumbrance not excepted in the policy. (Udell v. City of Title Insurance Company, 12 A.D.2d 78, 208 N.Y.S.2d 504.)