Court of Appeals of New York.
HEIDI ASSOCIATES, Respondent,v.LAWYERS TITLE INSURANCE CO., Appellant.
May 29, 1986.
Purchaser brought action against title insurance company to recover on title policy after city foreclosed on property because of unpaid taxes. The Supreme Court, Bronx County, Mercorella, J., granted purchaser's motion for summary judgment, and title insurance company appealed. The Supreme Court, Appellate Division, affirmed, 112 A.D.2d 844, 492 N.Y.S.2d 949, but certified question to Court of Appeals, 114 A.D.2d 750, 494 N.Y.S.2d 990. On certification, the Court of Appeals held that in rem proceeding to foreclose tax liens, pendency of which was not specifically noted or excepted in title policy, was not separate incumbrance from liens.
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In rem proceeding to foreclose tax liens, pendency of which was not specifically noted or excepted in title policy, was not separate incumbrance from liens themselves, which were noted and excepted by insurer. ***87 **350*1043 Arthur S. Linker and James M. Pedowitz, New York City, for appellant.
Richard L. Herzfeld and Jerome M. Leitner, Mineola, for respondent.
Samuel Kirschenbaum, New York City, for New York State Land Title Ass'n, amicus curiae.
***88 OPINION OF THE COURT
Order reversed, with costs, defendant's motion for summary judgment on the first **351 cause of action of the complaint granted and plaintiff's motion for summary judgment on said cause of action denied. Certified question answered in the negative. We *1044 agree with so much of the dissenting memorandum of Justice Ernst Rosenberger at the Appellate Division (112 A.D.2d 844, 847-850, 492 N.Y.S.2d 949) as concluded that the in rem proceeding upon which plaintiff's claim is based is not a separate incumbrance from the tax liens to which the defendant title insurer had duly excepted. Given those exceptions in the commitment and title policy, Insurance Law section 1113(a)(18), which defines title insurance generally, does not require a contrary conclusion.
WACHTLER, C.J., and MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JJ., concur.
504 N.Y.S.2d 87, 67 N.Y.2d 1041, 495 N.E.2d 350
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