Opinion
March 11, 1991
Appeal from the Supreme Court, Nassau County (McCabe, J.).
Ordered that the order is affirmed, without costs or disbursements.
Although a certificate of occupancy indicates that the building on the premises which was the subject of one of the contracts of sale conforms substantially with the zoning ordinance (cf., CPLR 4520), the defendants submitted evidence purporting to demonstrate that there are insufficient parking spaces for a building of that size and that therefore large portions of it are presently legally unusable. Since the record raises an issue of fact as to whether the plaintiff seller was able to convey marketable title in accordance with the terms of the contracts (cf., DeJong v Mandelbaum, 122 A.D.2d 772, 774), the Supreme Court properly denied the motion and cross motion for summary judgment. Lawrence, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.