Opinion
March 21, 1960
Barry Katzman for defendants.
Edgar Levy for plaintiff.
This is a motion for reargument of the defendants' motion for summary judgment. The defendant originally moved for summary judgment which was denied by this court. However, in view of the then state of the record, the court of its own motion and pursuant to rule 113 of the Rules of Civil Practice granted summary judgment to the plaintiff. The moving papers upon the motion for reargument have attached thereto photographs showing the encroachment and what it actually is. The survey that was attached to the papers upon the original motion showed an encroachment of a concrete wall 4 feet 7 1/2 inches upon the street. However, what is referred to therein as a concrete wall turns out, according to the photograph, to be a gate or a cement portion of a gate surrounding an areaway which, in the opinion of the court, is not such an encroachment as would make the title unmarketable as a matter of law. Therefore the motion to reargue the original motion of the defendant is granted and upon such reargument that part of the motion which sought summary judgment by the defendant is denied. However, that part of the decision that granted summary judgment to the plaintiff is modified to the extent of denying summary judgment to the plaintiff. Settle order on notice.