Opinion
April 15, 1994
Appeal from the Supreme Court, Erie County, Doyle, Jr., J.
Present — Pine, J.P., Balio, Lawton, Davis and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendants for partial summary judgment because defendants were ready, willing and able to convey good and marketable title, free and clear of encumbrances or material defects, to the property described in the contract of sale (see, Cerf v Diener, 210 N.Y. 156; cf., Empire Career Ctr. v Town of Schuyler, 203 A.D.2d 906 [decided herewith]). The fact that a portion of the deck and the brick patio extended into a common area owned by the Rivermist Condominium Association does not constitute an encroachment upon the property of defendants that renders title unmarketable (see generally, DeJong v Mandelbaum, 122 A.D.2d 772, 773-774).
The argument advanced by plaintiffs, for the first time on appeal, that they are entitled to summary judgment on the ground that there was a material mutual mistake is not properly before us (see, Ciesinski v Town of Aurora, 202 A.D.2d 984; Charlotte Lake Riv. Assocs. v American Ins. Co., 68 A.D.2d 151, 154-155). It is well settled that "[a]n appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance" (Fresh Pond Rd. Assocs. v Estate of Schacht, 120 A.D.2d 561; see also, Douglas Elliman-Gibbons Ives v Kellerman, 172 A.D.2d 307, 308, lv denied 78 N.Y.2d 856).