Summary
refusing to dismiss a negligence claim where there were triable issues of fact as to whether a mortgagee never owned, possessed, or controlled the subject premises
Summary of this case from Snellinger v. Fed. Nat'l Mortg. Ass'nOpinion
July 20, 1998
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the branch of the motion which was to dismiss the third-party complaint is denied, and the third-party complaint is reinstated.
The plaintiffs allege that they were exposed to lead poisoning. while they were tenants in a building owned by the defendants third-party plaintiffs. A third-party action was commenced against Green Point Savings Bank (hereinafter Green Point), the mortgagee, inter alia, for indemnification and contribution. Contrary to Green Point's contention that it never owned, possessed, or controlled the subject premises, we conclude that triable issues of fact exist as to whether it was a mortgagee in possession during the time of the alleged exposure and, if so, whether it breached a duty of care ( see, Mortimer v. East Side Sav. Bank, 251 App. Div. 97; Pantano v. Erie County Sav. Bank, 257 App. Div. 451).
Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.