The plaintiff Matthew Mcroy slipped and fell on snow and ice on a sidewalk abutting a four unit apartment building that was owned by Waheed Eskander (“Eskander”). The building was vacant at the time he fell. Eskander had defaulted on his mortgage to Bank of America (“”BOA”) and a final judgment by foreclosure was entered in favor of BOA. When plaintiff fell, a sheriff’s sale had not yet occurred. In McRoy v. Eskander, 2015 N.J. Super. Unpub. LEXIS 909 (App. Div. April 21, 2015), the plaintiff claimed that Eskander and BOA were negligent for failing to maintain the sidewalk.
The BOA did not maintain the premises, but for performing yard work on one occasion. It merely inspected the premises periodically to ensure it was vacant. The BOA did pay the property taxes and a water bill.
The trial court granted summary judgment to the BOA. The plaintiff appealed, claiming that the premises were commercial in nature and, as a mortgagee in possession, BOA had a duty to warn him of or eliminate all hazardous conditions from the sidewalk.
The Appellate Division noted that the key to determining if the mortgagee could be liable for a fall on a public sidewalk is whether they are in possession and are managing the premises. Here, the court considered the apartment building to be commercial. However, it was satisfied that BOA was not a mortgagee in possession. BOA never supplanted or supplemented Eskander’s control or management of the property. He chose to let the building be vacant and ignore his duties as a landowner by failing to remove snow and ice from the abutting sidewalk. Except for the one time that a BOA agent did some yard work, there was simply no evidence that the BOA exercised the required dominion and control over the premises to be deemed a mortgagor in possession.
Although BOA paid the property taxes and water bill, that was to protect its collateral. It was not done to exert control over the management of the property.
Accordingly, the Appellate Division found that the BOA was not liable for the plaintiff’s injuries and affirmed the trial court’s dismissal of the case.
