Sydelman v. Marici

Appellate Division of the Supreme Court of New York

Sydelman v. Marici

56 A.D.2d 866, 392 N.Y.S.2d 333, 1977 N.Y. App. Div. LEXIS 11227

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 14, 1977

StatusPublished

This text of 56 A.D.2d 866 (Sydelman v. Marici) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sydelman v. Marici, 56 A.D.2d 866, 392 N.Y.S.2d 333, 1977 N.Y. App. Div. LEXIS 11227 (N.Y. Ct. App. 1977).

Pincite

Opinion

In an action by contract vendees, inter alia, to compel defendants to return their down payment (the first cause of action), or, in the alternative, to foreclose their vendees’ lien (the second cause of action), plaintiffs appeal from an order of the Supreme Court, Kings County, dated May 5, 1976, which denied their motion (1) for summary judgment as to their first two causes of action and (2) to dismiss defendants’ counterclaim. Order reversed, on the law, without costs or disbursements, and motion granted; plaintiffs are awarded judgment as to their first two causes of action, the counterclaim is dismissed, and the action is remanded to Special Term for further proceedings consistent herewith. The one and one-half foot encroachment of the front of the garage upon the public street is an incurably defective bar to clear title (see General City Law, § 38-a; cf. Cohen v Kranz, 12 NY2d 242). Defendants’ proposed remedy of removing the encroachment and adding one and one-half feet to the rear of the garage would constitute an alteration from, and a substitute for, what was contracted for. The one and one-half foot portion to the rear, presently unimproved, would be put to a use other than that contemplated by plaintiffs if such change were made. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.

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In an action by contract vendees, inter alia, to compel defendants to return their down payment (the first cause of action), or, in the alternative, to foreclose their vendees’ lien (the second cause of action), plaintiffs appeal from an order of the Supreme Court, Kings County, dated May 5, 1976, which denied their motion (1) for summary judgment as to their first two causes of action and (2) to dismiss defendants’ counterclaim. Order reversed, on the law, without costs or disbursements, and motion granted; plaintiffs are awarded judgment as to their first two causes of action, the counterclaim is dismissed, and the action is remanded to Special Term for further proceedings consistent herewith. The one and one-half foot encroachment of the front of the garage upon the public street is an incurably defective bar to clear title (see General City Law, § 38-a; cf. Cohen v Kranz, 12 NY2d 242). Defendants’ proposed remedy of removing the encroachment and adding one and one-half feet to the rear of the garage would constitute an alteration from, and a substitute for, what was contracted for. The one and one-half foot portion to the rear, presently unimproved, would be put to a use other than that contemplated by plaintiffs if such change were made. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.

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Bluebook (online)

56 A.D.2d 866, 392 N.Y.S.2d 333, 1977 N.Y. App. Div. LEXIS 11227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sydelman-v-marici-nyappdiv-1977.

Opinion

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