Forbes v. Aaron

• Decision Date: 22 February 2011
• Citation: 918 N.Y.S.2d 118,81 A.D.3d 876
• Parties: Duncan FORBES, appellant, v. Linda D. AARON, et al., defendants, Bank of New York as Trustee for the Certificate Holders CWABS Inc. Asset-Backed Certificate Series 2005-11, et al., respondents.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 118

81 A.D.3d 876

Duncan FORBES, appellant,

v. Linda D. AARON, et al., defendants,Bank of New York as Trustee for the Certificate Holders CWABS Inc. Asset-Backed Certificate Series 2005-11, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 22, 2011.

Ateshoglou & Aiello, P.C., New York, N.Y. (Thomas LoBue of counsel), for appellant.

Akerman Senterfitt LLP, New York, N.Y. (Jennifer L. Rubin of counsel), for respondents.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated March 4, 2010, which, in effect, granted that branch of the motion of the defendants Bank of New York as Trustee for the Certificate Holders CWABS Inc. Asset-Backed Certificate Series 2005-11 and the Bank of New York Mellon Corporation which was to dismiss the complaint, in effect, pursuant to CPLR 3211(a)(1) insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On March 1, 2008, the plaintiff sustained injuries when he allegedly tripped and fell on the sidewalk in front of a four-family dwelling in Brooklyn (hereinafter the property). At the time of the accident, the defendant Linda D. Aaron was the title owner of the property.

Prior to the plaintiff's accident, the defendant Bank of New York as Trustee for the Certificate Holders CWABS Inc. Asset-Backed Certificate Series 2005-11 (hereinafter BNY, together with the defendant Bank of New York Mellon Corporation) commenced a foreclosure proceeding with respect to the property. Eventually, the property was sold at auction to BNY on August 14, 2008, more than five months after the accident.

The plaintiff commenced this action to recover damages for his personal injuries premised upon a theory of negligence. He named Aaron and BNY, among others, as defendants, alleging that they owned the property.

BNY moved, inter alia, to dismiss the complaint, in effect, pursuant to CPLR 3211(a)(1) on the ground that it owed no duty of care to the plaintiff since it was not the owner of the property until after the accident occurred. The plaintiff opposed the motion.

The Supreme Court granted that branch of the motion which was to dismiss the complaint, in effect, pursuant to CPLR 3211(a)(1). The plaintiff appeals, and we affirm.

"A motion to dismiss a complaint based on documentary evidence 'may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law' " ( Stein v. Garfield Regency Condominium, 65 A.D.3d 1126, 1128, 886 N.Y.S.2d 54, quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Fontanetta v. John Doe 1, 73 A.D.3d 78, 898 N.Y.S.2d 569). Deeds, mortgages, and notes can qualify as "documentary evidence" for the purpose of CPLR 3211(a)(1) ( see Datena v. JP Morgan Chase Bank, 73 A.D.3d 683, 901 N.Y.S.2d 290; Crepin v. Fogarty, 59 A.D.3d 837, 874 N.Y.S.2d 278; Bronxville Knolls v. Webster Town Ctr. Partnership, 221 A.D.2d 248, 634 N.Y.S.2d 62; see also Fontanetta v. John Doe 1, 73 A.D.3d 78, 898 N.Y.S.2d 569; compare Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 1017, 900 N.Y.S.2d 686).

It is fundamental that, in order to be held liable in tort, the alleged tortfeasor must have owed the injured party a duty of care ( see Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584, 611 N.Y.S.2d 817, 634 N.E.2d 189). As a general rule, liability for a dangerous or defective condition on real property must be predicated upon ownership, occupancy, control, or special use of that property ( see Kydd v. Daarta Realty Corp., 60 A.D.3d 997, 998, 877 N.Y.S.2d 352; Gover v. Mastic Beach Prop. Owners Assn., 57 A.D.3d 729, 869 N.Y.S.2d 593; Dugue v. 1818 Newkirk Mgt. Corp., 301 A.D.2d 561, 756 N.Y.S.2d 51). Since the subject...