        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

472
CA 15-01213
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


LATOYA PEOPLES, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

M&T BANK, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


DAVID M. GIGLIO & ASSOCIATES, LLC, UTICA (BRIDGET M. TALERICO OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

HODGSON RUSS LLP, BUFFALO (PATRICK J. HINES OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered April 20, 2015. The order granted the motion
of defendant M&T Bank for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained as a result of her alleged exposure to lead
paint through March 1993 in premises on which defendant M&T Bank
(defendant) held a mortgage. Defendant moved for summary judgment
dismissing the complaint against it because it did not become owner of
the premises where the exposure allegedly occurred until April 1993,
after the period of alleged exposure, and because it owed no duty to
plaintiff as an out-of-possession mortgagee during the period of
exposure. Supreme Court granted the motion, and we now affirm.

     It is clear from the record that defendant did not become the
owner of the premises until the foreclosure sale on April 5, 1993,
which, as plaintiff correctly concedes, occurred after the period in
which she was allegedly exposed to lead paint on the premises (see
Forbes v Aaron, 81 AD3d 876, 877). Thus, defendant is not liable for
plaintiff’s alleged injuries (see Suero-Sosa v Cardona, 112 AD3d 706,
707; Pollard v Credit Suisse First Boston Mtge. Capital, LLC, 66 AD3d
862, 863, lv denied 14 NY3d 708; Greenpoint Bank v John, 256 AD2d 548,
548). We reject plaintiff’s contention that the Referee appointed by
the court in the foreclosure action was an agent of defendant, and
that the authority and actions or inactions of the Referee may
therefore be attributed to defendant. It is well settled that a
receiver “is an officer of the court and not an agent of the mortgagee
or the owner” (Bank of Am., N.A. v Oneonta, L.P., 97 AD3d 1023, 1026
                                 -2-                           472
                                                         CA 15-01213

[internal quotation marks omitted]; see Matter of Kane [Freedman
—Tenenbaum], 75 NY2d 511, 515; Matter of Schwartzberg v Whalen, 96
AD2d 974, 975).




Entered:   June 17, 2016                       Frances E. Cafarell
                                               Clerk of the Court
