Opinion
January 14, 1991
Appeal from the Supreme Court, Westchester County (Marbach, J.).
Ordered that the judgment is affirmed, with costs.
The plaintiff purchaser sought, inter alia, return of its deposit plus the costs of title examination on the ground that the defendant seller was unable to convey marketable title because of certain easements encumbering the subject property. On a prior appeal, we reversed the trial court's granting of summary judgment to the plaintiff and remitted for a trial, finding there were questions of fact as to whether these easements rendered title unmarketable (see, Equiptex Indus. Prods. Corp. v Paulucci, 133 A.D.2d 440). Upon review of the testimony, we find no reason to disturb the trial court's finding that the easement for ingress and egress running the length of the southern boundary of the property and shared with the adjoining landowner was an encumbrance rendering title unmarketable (see, Rhodes v Astro-Pac, Inc., 51 A.D.2d 656, affd 41 N.Y.2d 919). The evidence established that the plaintiff did not agree to take subject to the easement. Thompson, J.P., Kunzeman, Lawrence and Rosenblatt, JJ., concur.