Coram Professional Building Associates v. Route 347 Realty Corp.

In an action, inter alia, for a judgment declaring that the defendants defaulted on two related contracts for the sale of real property, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCabe, J.), dated September 8, 1989, as denied its motion for summary judgment, and the defendants cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment. Ordered that the order is affirmed, without costs or disbursements. Although a certificate of occupancy indicates that the building on the premises which was the subject of one of the contracts of sale conforms substantially with the zoning ordinance (cf., CPLR 4520), the defendants submitted evidence purporting to demonstrate that there are insufficient parking spaces for a building of that size and that therefore large portions of it are presently legally unusable. Since the record raises an issue of fact as to whether the plaintiff seller was 723 able to convey marketable title in accordance with the terms of the contracts (cf., DeJong v Mandelbaum, 122 AD2d 772, 774), the Supreme Court properly denied the motion and cross motion for summary judgment. Lawrence, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.