Opinion
DOCKET NO. A-3558-13T3
04-21-2015
MATTHEW MCROY, Plaintiff-Appellant, v. WAHEED Z. ESKANDER, WAFA ESKANDER, MAHMOUD ESSAM Y. MARZOAK, BANK OF AMERICA, N.A., TAHANY E. SALIB, Defendants-Respondents.
Zavodnick, Perlmutter & Boccia, L.L.C., attorneys for appellant (Christopher S. Byrnes, on the brief). Reed Smith, L.L.P., attorneys for respondent Bank of America, N.A. (Aaron M. Bender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2259-12. Zavodnick, Perlmutter & Boccia, L.L.C., attorneys for appellant (Christopher S. Byrnes, on the brief). Reed Smith, L.L.P., attorneys for respondent Bank of America, N.A. (Aaron M. Bender, of counsel and on the brief). PER CURIAM
Plaintiff appeals from a January 17, 2014 Law Division order granting summary judgment in favor of and dismissing his complaint against defendant Bank of America, N.A. (BOA). We affirm.
I
We discern the following facts from the record. On February 2, 2011, plaintiff injured his arm when he slipped and fell on snow and ice that had accumulated on a sidewalk abutting a four-unit apartment building owned by defendant Waheed Z. Eskander. At one time Eskander lived in the building and rented out the other three units but, as of the time of plaintiff's fall, the building had been vacant since November 23, 2009.
Eskander and his spouse, defendant Tahany E. Salib, had previously executed a note and mortgage to BOA, using the building as collateral. The mortgagors defaulted and, on November 23, 2009, a final judgment of foreclosure was entered in favor of BOA and against Eskander and Salib for $583,362.14, plus interest, costs, and counsel fees. When plaintiff fell on February 2, 2011, a sheriff's sale had not yet taken place.
On May 2, 2012, plaintiff filed a complaint against Eskander and Wafa Eskander, alleging they were negligent in maintaining the premises, including the sidewalk. The complaint was later amended to name the remaining defendants. Plaintiff also alleged BOA was negligent for failing to maintain the premises and sidewalk.
It is not clear what Wafa Eskander's relationship is to Waheed Eskander. However, we do not reference Wafa Eskander again in this opinion and for simplicity we refer to Waheed Eskander as "Eskander."
The record indicates that, but for performing yard work on one occasion in April 2010, BOA did not maintain the premises or the sidewalk. BOA merely inspected the premises periodically to ensure it was vacant. BOA did protect its collateral to the extent it paid property taxes and a water bill.
After discovery ended, BOA filed and was granted its motion for summary judgment. Following a proof hearing the court entered judgment against Eskander for $70,000.
Plaintiff contends the trial court erred when it granted BOA summary judgment. He argues the premises were commercial in nature and that, as a mortgagee in possession, BOA had a duty to warn him of or eliminate all hazardous conditions from the sidewalk.
II
In reviewing a summary judgment decision, we apply the same standard as the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Viewing the evidence "in a light most favorable to the non-moving party," we determine "if there is a genuine issue as to any material fact or whether the moving party is entitled to judgment as a matter of law." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We review questions of law de novo. State v. Gandhi, 201 N.J. 161, 176 (2010), and need not accept the trial court's conclusions of law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).
In Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981), our Supreme Court held that commercial landowners have a duty to maintain the public sidewalks abutting their property in reasonably good condition and "are liable to pedestrians injured as a result of their negligent failure to do so." In Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983), the Court held that commercial landowners have a duty to remove snow and ice from the sidewalks abutting their property after receiving actual or constructive notice.
In Scott v. Hoboken Bank for Sav., 126 N.J.L. 294, 298 (Sup. Ct. 1941) (internal citations omitted), aff'd, 127 N.J.L. 564 (E. & A. 1942), the court held that when the mortgagee "take[s] out of the hands of the mortgagor the management and control of the estate," the mortgagee becomes a mortgagee in possession. "The duty of a mortgagee in possession is that of a provident owner," which includes managing and preserving the property. Essex Cleaning Contractors, Inc. v. Amato, 127 N.J. Super. 364, 366 (App. Div.), certif. denied, 65 N.J. 575 (1974). A mortgagee in possession is liable both for damages to the property while in possession, Zanzonico v. Zanzonico, 2 N.J. 309, 316, cert. denied, 338 U.S. 868, 70 S. Ct. 143, 94 L. Ed. 532 (1949), and in tort for injuries arising from "'his actionable fault in utilizing the property or . . . his failure to perform duties imposed by law upon the owner of the land.'" Essex Cleaning, supra, 127 N.J. Super. at 367 (quoting Osborne, Law of Mortgages at 283 (2d ed. 1970)); see also Scott, supra, 126 N.J.L. at 298.
"[T]he acts of a mortgagee under the circumstances, determine whether or not possession and management of the premises have been undertaken by the mortgagee." Scott, supra, 126 N.J.L. at 298. In Scott, the plaintiff obtained a judgment against the mortgagee bank when he was injured on the mortgaged premises. Id. at 295. The court found that the bank was a mortgagee in possession at the time of plaintiff's injury because the bank had complete control over the premises. Id. at 298. Specifically, the bank collected the rent, paid all bills, and managed the property, including making all repairs. Id. at 297. Consequently, the court affirmed the judgment entered in favor of the plaintiff and against the bank. Id. at 299-300.
Here, for purposes of our review we assume — without holding — that Eskander's apartment building was commercial property. Viewing all facts in a light most favorable to plaintiff, we are satisfied from our examination of the record that BOA was not a mortgagee in possession. BOA never supplanted or supplemented Eskander's control or management of the property, who chose to let the building be vacant and ignored his duties as a landowner by failing to remove snow and ice from the abutting sidewalk. But for one instance when BOA's agent did some yard work, BOA never expended any effort to preserve or improve the premises, including the adjoining sidewalk, in any respect. The record is simply barren of any evidence that BOA exercised the requisite dominion and control over the premises to be deemed a mortgagor in possession.
Although BOA paid the property taxes and water bill and occasionally drove by the property to determine if the building was inhabited, these actions were undertaken to protect its collateral and not to exert any control over the management of the property, and did not convert BOA into a mortgagee in possession. Accordingly, BOA is not liable for plaintiff's injuries.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION