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DAVID BARASKY et al., Respondents, v. HOWARD HUTTNER et al., Appellants.

Ordered that the judgment is affirmed, with costs.

The plaintiffs contracted with the sellers to purchase a parcel of real estate. Under the terms of the contract, the sellers were required to convey marketable title. The plaintiffs made a prima facie showing that the subject premises lacked access. Lack of legal access renders title unmarketable (Pollak v State of New York, 41 N.Y.2d 909). It was thereupon incumbent upon the sellers to raise a triable issue of fact that their title was marketable. Upon our review of the record, we conclude that they failed to make such a showing. Accordingly, the plaintiffs were entitled to summary judgment for the return of their down payment and for reimbursement for related expenses pursuant to the terms of the contract. Bracken, J.P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.

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BARASKY v. HUTTNER
(Dec 19, 1994)