New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Civil Procedure2 / Mortgagee in Possession Has a Duty to Care for the Property/Criteria for...
Civil Procedure, Negligence, Real Property Law, Trespass

Mortgagee in Possession Has a Duty to Care for the Property/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action, Where Documentary Evidence Is Submitted, Explained

In the context of a motion to dismiss for failure to state a cause of action (where documentary evidence was submitted), the Second Department determined a mortgagee in possession of property (here because the property owner went bankrupt) has a duty to care for the property which is identical a property owner’s duty.  Here plaintiffs alleged the property, which had been damaged by fire, was allowed to deteriorate to the extent that plaintiffs’ neighboring property was damaged. The causes of action for nuisance, negligence and trespass survived the motion to dismiss.  The court noted its role when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:

A motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . While the documentary evidence submitted by One West established that it did not own the defendants’ property at any relevant time … , that evidence did not “utterly refute” the plaintiffs’ contention that One West had a duty based on its status as a mortgagee in possession. In fact, the documents, which establish ownership, did not address the plaintiffs’ contention regarding One West’s alleged status as a mortgagee in possession … . Accordingly the Supreme Court erred in granting the motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(1).

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … .

The plaintiffs’ contention that [defendant] was a mortgagee in possession has not been shown to be “not a fact at all” … . If [defendant] were, in fact, a mortgagee in possession, it was “bound to employ the same care and supervision over the mortgaged premises that a reasonably prudent owner would exercise in relation to his [or her] own property; he [or she] is bound to make reasonable and needed repairs, and is responsible for any loss or damage occasioned by his willful default or gross neglect in this regard” … . Thus, the complaint, as augmented by the affidavit of the plaintiff Emeta Allen, which was submitted in opposition to the motion to dismiss …, properly set forth causes of action alleging nuisance, negligence, and trespass, and the plaintiffs have causes of action sounding in nuisance, negligence, and trespass. Allen v Echeverria, 2015 NY Slip Op 04075, 2nd Dept 5-13-15

 

May 13, 2015
Tags: Second Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2015-05-13 00:00:002020-02-06 18:45:47Mortgagee in Possession Has a Duty to Care for the Property/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action, Where Documentary Evidence Is Submitted, Explained
You might also like
FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST.
DEFENDANT PROPERTY OWNER DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF ANY DEFECTS IN THE CEILING THAT FELL ON PLAINTIFFS; THE RES IPSA LOQUITUR DOCTRINE DID NOT APPLY BECAUSE DEFENDANTS DID NOT HAVE EXCLUSIVE CONTROL OVER THE CONDITION (SECOND DEPT).
Therapeutic Dog Allowed In Court to Support Alleged Child Victim of Sexual Offenses During Trial Testimony
DEFENDANT ALLEGED ITS PRINCIPAL PLACE OF BUSINESS WAS IN NASSAU COUNTY BUT NEVER AMENDED ITS CERTIFICATE OF INCORPORATION WHICH DESIGNATED ITS PRINCIPAL PLACE OF BUSINESS AS QUEENS COUNTY; DEFENDANT’S MOTION TO CHANGE THE VENUE OF THIS SLIP AND FALL CASE FROM QUEENS TO NASSAU COUNTY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT DID NOT PRESENT A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT; DEFENDANT’S STATEMENT THAT HIS “BRAKES FAILED” WAS DEEMED SELF-SERVING AND INADMISSIBLE (SECOND DEPT).
SUPREME COURT SHOULD HAVE CONDUCTED AN INQUIRY TO ENSURE DEFENDANT INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL AFTER HIS ATTORNEY WAS PERMITTED TO WITHDRAW; NEW TRIAL ORDERED (SECOND DEPT).
SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED.
THE CRITERIA FOR LONG-ARM JURISDICTION BASED UPON A TORT COMMITTED “WITHIN THE STATE” CLARIFIED; NEW YORK DID NOT HAVE LONG-ARM JURISDICTION OVER THE OUT-OF-STATE INDIVIDUAL DEFENDANTS, MEMBERS OF AN LLC WHICH SOLD N95 MASKS TO THE NEW YORK PLAINTIFF; IT WAS ALLEGED THE QUALITY OF THE MASKS WAS MISREPRESENTED IN AN EMAIL TO THE NEW YORK PLAINTIFF (FIRST DEPT).

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trespass to Chattels
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Defect Was Trivial As a Matter of Law—Criteria Explained Plaintiff Did Not Adequately Allege a Presuit Demand Would Be Futile
Scroll to top