Opinion
October 29, 1963
Order, entered January 3, 1963, denying defendants' motion and plaintiffs' cross motion for summary judgment, unanimously modified on the law, to the extent of granting defendants' said 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 incumbrances 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 incumbrance not excepted in the policy. ( Udell v. City Title Ins. Co., 12 A.D.2d 78.)
Concur — Botein, P.J., McNally, Stevens, Steuer and Bastow, JJ.