Appeal from a judgment of the City Court of Newburgh, Orange County (Peter M. Kulkin, J.), entered April 28, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000.

Judgment affirmed without costs.

In this small claims action, plaintiff sought the return of the money he paid to defendant for an assignment of defendant's rights under a contract for the purchase of certain real property. The assignment provided for its termination and the return of said money in the event that a title examination revealed that the seller "does not have clear and marketable title to the premises and that the [seller] fails, refuses or cannot clear
the title so as to convey good and marketable title." The title report, admitted into evidence, noted that foreclosure proceedings had been instituted against the premises. There were arrears for property taxes and judgments against the seller which would have to be satisfied in order to convey marketable title. The total indebtedness exceeded the purchase price of the premises. The report also noted that the seller had filed a bankruptcy petition. In addition, a letter was admitted into evidence from the Building Safety Division of the Kingston Fire Department to the seller advising him that there were extensive violations on the premises, including an illegal first floor apartment. The letter noted that a building permit was required to cure the violations and that the violations need to be remedied prior to the Building Safety Division "unposting" the property. Accordingly, the evidence presented, including the title report, together with the other documents, was sufficient for the court to find that the seller was not in a position to convey "clear and marketable title" to the property (see Bennardo v Del Monte Caterers, Inc., 27 AD3d 503 [2006]), thereby entitling plaintiff to the return of the money he paid defendant. [*2]

In view of the foregoing, the judgment in favor of plaintiff rendered substantial justice between the parties according to the rules and principles of substantive law (UCCA 1807) and should be affirmed.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: December 13, 2006