OPINION OF THE COURT

Order reversed, with costs, defendant’s motion for summary judgment on the first 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 *1044agree with so much of the dissenting memorandum of Justice Ernst Rosenberger at the Appellate Division (112 AD2d 844, 847-850) as concluded that the in rem proceeding upon which plaintiffs claim is based is not a separate encumbrance from the tax liens to which the defendant title insurer had duly excepted. Given those exceptions in the commitment and title policy, Insurance Law § 1113 (a) (18), which defines title insurance generally, does not require a contrary conclusion.

Concur: Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr.