PEOPLES v. M&T BANK

Appellate Division of the Supreme Court of New York

PEOPLES v. M&T BANK

140 A.D.3d 1741, 32 N.Y.S.3d 423

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 17, 2016

DocketCA 15-01213

StatusPublished

Cited by1 cases

This text of 140 A.D.3d 1741 (PEOPLES v. M&T BANK) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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PEOPLES v. M&T BANK, 140 A.D.3d 1741, 32 N.Y.S.3d 423 (N.Y. Ct. App. 2016).

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Opinion

*1742 Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered April 20, 2015. The order granted the motion of defendant M&T Bank for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained as a result of her alleged exposure to lead paint through March 1993 in premises on which defendant M&T Bank (defendant) held a mortgage. Defendant moved for summary judgment dismissing the complaint against it because it did not become owner of the premises where the exposure allegedly occurred until April 1993, after the period of alleged exposure, and because it owed no duty to plaintiff as an out-of-possession mortgagee during the period of exposure. Supreme Court granted the motion, and we now affirm.

It is clear from the record that defendant did not become the owner of the premises until the foreclosure sale on April 5, 1993, which, as plaintiff correctly concedes, occurred after the period in which she was allegedly exposed to lead paint on the premises (see Forbes v Aaron, 81 AD3d 876, 877 [2011]). Thus, defendant is not liable for plaintiffs alleged injuries (see SueroSosa v Cardona, 112 AD3d 706, 707 [2013]; Pollard v Credit Suisse First Boston Mtge. Capital, LLC, 66 AD3d 862, 863 [2009], lv denied 14 NY3d 708 [2010]; Greenpoint Bank v John, 256 AD2d 548, 548 [1998]). We reject plaintiffs contention that the Referee appointed by the court in the foreclosure action was an agent of defendant, and that the authority and actions or inactions of the Referee may therefore be attributed to defendant. It is well settled that a receiver “is an officer of the court and not an agent of the mortgagee or the owner” {Bank of Am., N.A. v Oneonta, L.P., 97 AD3d 1023, 1026 [2012] [internal quotation marks omitted]; see Matter of Kane [Freedman — Tenenbaum], 75 NY2d 511, 515 [1990]; Matter of Schwartzberg v Whalen, 96 AD2d 974, 975 [1983]).

Present— Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.

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*1742 Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered April 20, 2015. The order granted the motion of defendant M&T Bank for summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained as a result of her alleged exposure to lead paint through March 1993 in premises on which defendant M&T Bank (defendant) held a mortgage. Defendant moved for summary judgment dismissing the complaint against it because it did not become owner of the premises where the exposure allegedly occurred until April 1993, after the period of alleged exposure, and because it owed no duty to plaintiff as an out-of-possession mortgagee during the period of exposure. Supreme Court granted the motion, and we now affirm.

It is clear from the record that defendant did not become the owner of the premises until the foreclosure sale on April 5, 1993, which, as plaintiff correctly concedes, occurred after the period in which she was allegedly exposed to lead paint on the premises (see Forbes v Aaron, 81 AD3d 876, 877 [2011]). Thus, defendant is not liable for plaintiffs alleged injuries (see SueroSosa v Cardona, 112 AD3d 706, 707 [2013]; Pollard v Credit Suisse First Boston Mtge. Capital, LLC, 66 AD3d 862, 863 [2009], lv denied 14 NY3d 708 [2010]; Greenpoint Bank v John, 256 AD2d 548, 548 [1998]). We reject plaintiffs contention that the Referee appointed by the court in the foreclosure action was an agent of defendant, and that the authority and actions or inactions of the Referee may therefore be attributed to defendant. It is well settled that a receiver “is an officer of the court and not an agent of the mortgagee or the owner” {Bank of Am., N.A. v Oneonta, L.P., 97 AD3d 1023, 1026 [2012] [internal quotation marks omitted]; see Matter of Kane [Freedman — Tenenbaum], 75 NY2d 511, 515 [1990]; Matter of Schwartzberg v Whalen, 96 AD2d 974, 975 [1983]).

Present— Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.

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140 A.D.3d 1741, 32 N.Y.S.3d 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peoples-v-mt-bank-nyappdiv-2016.

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