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Salazar v. Carol Joy Family Props.

Supreme Court, Queens County
Jan 3, 2022
2022 N.Y. Slip Op. 32425 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 706809/2021 Motion Seq. No.: 002

01-03-2022

GLORIA TELLEZ SALAZAR, Plaintiff v. CAROL JOY FAMILY PROPERTIES LLC, NEMET MOTORS, LLC, and NISSAN MOTOR ACCEPTANCE CORPORATION, Defendants. v.


Unpublished Opinion

Part 21

Motion Date: 10/15/2021

FILED 1/10/2022

Donna-Marie E. Golia, JSC

The following electronically filed papers numbered EF16 to EF29 read on this motion by defendant Nissan Motor Acceptance Corporation to dismiss this action against them pursuant to New York Civil Practice Law and Rules ("CPLR") § 3211(a)(1) and (7):

Papers
Numbered
Notice of Motion, Affirmation, Exhibits....................................... EF16- EF22
Affirmation in Opposition, Affidavit of Service.............................. EF26 - EF28
Affirmation in Reply............................................................... EF29

Defendant Nissan Motor Acceptance Corporation ("defendant") ("NMAC") moves pursuant to New York CPLR § 3211(a)(1) and (7) for an order dismissing this action against them on the grounds of documentary evidence and that the complaint fails to state a cause of action. Plaintiff opposes the motion. Based upon the documents submitted, NMAC's motion is denied, as discussed more fully below.

In this action for personal injuries, plaintiff alleges that on February 10, 2021, she slipped on snow and ice and fell on the sidewalk in front of or adjacent to the premises located at 153-12 Hillside Avenue, Jamaica, New York ("the subject premises") which were owned by defendant Carol Joy Family Properties LLC ("Carol Joy"), leased by defendant Nemet Motors, LLC ("Nemet"), and encumbered by a mortgage, assignment of rents and leases, security agreement, and fixture filing ("the mortgage") in defendant NMAC's favor.

On March 28,2018, Caro! Joy executed and delivered a promissory note to NMAC, whereby Carol Joy bound itself in the amount of $11,500,00.00 plus interest on the unpaid balance. To secure repayment, Carol Joy executed a mortgage, granting NMAC a security interest in and against the subject premises, and in turn, Nemet Motors executed an unconditional guaranty agreement in NMAC's favor. NMAC recorded the mortgage in the Office of the City Register of the City of New York on April 4, 2018. Thereafter, on or about July 2019, Carol Joy defaulted on the note and mortgage, and thereafter, Nemet failed to honor its obligations under the guaranty agreement.

Now, defendant NMAC moves to dismiss the action against them based on documentary evidence and for failure to state a cause of action. NMAC argues that on the date of accident, title to the subject premises was vested with Carol Joy and therefore, NMAC cannot be held liable for any alleged personal injuries that were sustained on a property that it did not own, control, or maintain. Defendant NMAC claims that the mortgage and lease agreement attached to its own motion constitutes documentary evidence under CPLR § 3211(a)(1), which proves it was merely an out-of-possession mortgagee on the date of accident.

Moreover, NMAC argues that property liability may only be predicated upon occupancy, ownership or control of the premises, and since NMAC was an out-of-possession mortgagee, plaintiff cannot plead any facts to support a negligence claim against them pursuant to CPLR § 3211(a)(7). Additionally, NMAC states that it commenced a foreclosure proceeding in the Eastern District of New York to foreclose on the mortgage, but that as of the date that the instant motion was submitted, NMAC had not been granted judicial foreclosure, and as such, does not possess ownership rights to the property.

In opposition, plaintiff argues that the documents submitted by NMAC do not qualify as documentary evidence under CPLR § 3211(a)(1) as the mortgage and lease agreement submitted by NMAC are of questionable authenticity. Specifically, plaintiff states that the mortgage is signed solely by Carol Joy and not by NMAC, the lease agreement is signed by the same person for lessor and lessee and is also not dated. Plaintiff argues that NMAC does not submit an affidavit of any person with personal knowledge of the facts at hand, and that therefore, the evidence submitted cannot be of "undisputed authenticity" which can "conclusively establish [a] defense to the complaint" under CPLR §3211(a)(1).

Additionally, plaintiff states that even if the Court were to consider the unauthenticated documents submitted by NMAC in support of its motion, the contents thereof still do not warrant dismissal under CPLR § 3211 (a)(7). Plaintiff argues that Carol Joy and Nemet defaulted on their payments prior to the alleged accident, and that a foreclosure action was commenced against NMAC prior to the alleged accident as well. Plaintiff argues that both the default, and the foreclosure action entitled NMAC to take possession of the property, yet NMAC offered no admissible evidence to support a finding that they were solely an "out of possession mortgagee" without any ownership rights on the date of accident.

Plaintiff argues that pursuant to The New York City Administrative Code ("NYC Adm. Code") § 7-210, an owner of a property is liable to a pedestrian who suffers an injury due to a dangerous condition on their property and that the term "owner" has been liberally construed to include a mortgagee of the premises or any other person/firm/corporation directly or indirectly in control of the property. Plaintiff claims that therefore, even if NMAC did not have actual possession over the property at the time of plaintiffs accident, they qualified as an entity with significant control over the property supporting a cause of action for negligence against them.

Plaintiff also maintains that NMAC's motion is premature, as no depositions have been held, almost no discovery has been exchanged, and the documents upon which NMAC relies on in their motion create issues of fact.

DISCUSSION

A motion to dismiss based upon documentary evidence pursuant to CPLR § 3211(a)(1) will only be granted where the documentary evidence submitted by a defendant "utterly refute[s] the plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Magee-Boyle v Reliastar Life Ins. Co. of New York, 173 A.D.3d 1157, 1159 [2d Dept2019] citing Gould v Decolator, 121 A.D.3d 845, 847 [2d Dept 2014]). In order to qualify as documentary within the meaning of CPLR § 3211(a)(1), the evidence submitted '"must be unambiguous, authentic, and undeniable'" (id.). For example, "'[j]udicia! records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case'" (id citing Fontanetta v Doe, 73 A.D.3d 78, 84-85 [2d Dept 2010]). Generally, "out-of-possession mortgage holders who neither maintained nor controlled the premises where plaintiffs alleged accident occurred" cannot not be held liable for negligence in failing to maintain the premises (see, Moran v Regency Sav. Bank,20 A.D.3d 305 [2d Dept 2005]). However, a mortgagee in possession is "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" (see, Allen v Echeverria, 128 A.D.3d 738, supra, quoting Mortimer v East Side Sav. Bank , 251 AD97 [4th Dept 1937]).

Here, although defendant claims that the purported documentary evidence establishes that it did not own the subject property on the date of plaintiffs alleged accident, the evidence does not "utterly refute" plaintiffs factual allegations, resolve all factual issues, and dispose of plaintiffs claim (see, Yue Fung USA Enterprises, Inc. v Novelty Crystal Corp., 105 A.D.3d 840 [2d Dept 2010]). Although documents such as mortgages are generally deemed documentary evidence, here, the purported evidence is not "unambiguous and of undisputed authenticity" as they are not "utterly refutable]" under CPLR § 3211(a)(1) (see, Torah v Dell Equity, LLC, 90 A.D.3d 746 [2d Dept 2011]).

Specifically, the authenticity of the purported documentary evidence is in question as the mortgage submitted by NMAC is signed solely by Carol Joy, and not by NMAC. Additionally, the lease agreement is signed by the same person for lessor and lessee and is not dated. Thus, the evidence submitted does not "utterly refute" plaintiff's contention that defendant had a duty based on its status as a mortgagee in possession. In fact, even if the documents were deemed documentary evidence, the documents would establish ownership, and do not address plaintiffs argument regarding defendant's status as a mortgagee in possession (see, Allen v Echeverria. 128 A.D.3d 738 [2d Dept 2015]). Indeed, defendant provides the Court with no documentary evidence describing the outcome or status of the 2019 foreclosure action it commenced in the Eastern District of New York or indicating that it was not granted a possessory interest in the property. Accordingly, the branch of defendant's motion to dismiss the complaint against it pursuant to CPLR§ 3211(a)(1) is denied.

The Court next turns to the branch of defendant's motion seeking to dismiss the complaint against them for failure to state a cause of action pursuant to CPLR § 3211 (a)(7). "When a party moves to dismiss a complaint pursuant to CPLR § 3211 (a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (see, Bokhour v GTI Retail Holdings. Inc.. 94 A.D.3d 682 [2d Dept 2012]). Moreover, the court must read the complaint liberally and assume that the plaintiffs' allegations are true and must deny the motion to dismiss if the allegations fit within any cognizable legal theory (see, Heeran v Long Island Power Authority. 141 A.D.3d 561 [2d Dept 20161; Granada Condominium III Ass'n v Palomino. 78 A.D.3d 996 [2d Dept 2010]). "Indeed, a motion to dismiss pursuant to CPLR § 3211(a)(7) must be denied 'unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding if" (Sokol v Leader. 74 A.D.3d 1182 [2d Dept 2010], quoting Guggenheimer v Ginzburg. 43 N.Y.2d 268 [1977]).

Here, even if the purported documents were deemed documentary evidence, defendant has failed to "utterly refute" plaintiff's allegations and conclusively establish a defense as a matter of law (see, Attias v Costiera. 120A.D.3d 1281 [2d Dept 20141; Reiver v Burkhart Wexler & Hirschberg, LLP. 73 A.D.3d 1149 [2d Dept 2010]). Indeed, NMAC has not provided sufficient evidence to support a finding that it did not have a possessory interest in the property on the date of accident in order to relieve it of any negligence claims. In fact, if NMAC were a mortgagee in possession, it would have been bound to supervise the mortgaged premises in a way a reasonably prudent owner would (see, Allen v Echeverria. 128 A.D.3d 738). Thus, since the complaint properly set forth a cause of action sounding in negligence defendant's motion to dismiss the complaint against it pursuant to CPLR § 3211 (a)(7) is denied.

Accordingly, defendant NMAC's motion to dismiss the complaint against it pursuant to CPLR § 3211(a)(1) and (7) is denied.

This constitutes the Decision and Order of the Court.


Summaries of

Salazar v. Carol Joy Family Props.

Supreme Court, Queens County
Jan 3, 2022
2022 N.Y. Slip Op. 32425 (N.Y. Sup. Ct. 2022)
Case details for

Salazar v. Carol Joy Family Props.

Case Details

Full title:GLORIA TELLEZ SALAZAR, Plaintiff v. CAROL JOY FAMILY PROPERTIES LLC, NEMET…

Court:Supreme Court, Queens County

Date published: Jan 3, 2022

Citations

2022 N.Y. Slip Op. 32425 (N.Y. Sup. Ct. 2022)