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

461
CA 13-00627
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


JEFFREY KOCH AND ELIZABETH KOCH, INDIVIDUALLY
AND AS HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

DRAYER MARINE CORPORATION AND ASHVILLE BAY
MARINA, DEFENDANTS-RESPONDENTS.


ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (JUSTIN HENDRICKS
OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

LAW OFFICES OF LAURIE G. OGDEN, BUFFALO (LEO T. FABRIZI OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered July 19, 2012. The order granted defendants’
motion for summary judgment and dismissed plaintiffs’ amended
complaint in its entirety.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Jeffrey Koch (plaintiff) when a plank collapsed
while he was fishing from a dock at defendant Ashville Bay Marina
(Marina), which was owned and previously operated by defendant Drayer
Marine Corporation (Drayer). Defendants moved for summary judgment
dismissing the amended complaint on the ground, inter alia, that a
judgment of foreclosure had been entered against the Marina several
months prior to the accident. We conclude that Supreme Court properly
granted the motion.

     Initially, we agree with plaintiffs that the court erred in
concluding that defendants were entitled to summary judgment on the
ground that the judgment of foreclosure extinguished their ownership
of the Marina. Rather, “[t]he entry of a judgment of foreclosure and
sale does not divest the mortgagor of its title and interest in the
property until [a] sale is actually conducted” (Bethel United
Pentecostal Church v Westbury 55 Realty Corp., 304 AD2d 689, 692-693,
lv denied 100 NY2d 510; see Prudence Co. v 160 W. 73rd St. Corp., 260
NY 205, 210-211; Nutt v Cuming, 155 NY 309, 312-313). Because the
Marina’s property was not sold until August 2007, defendants retained
title to the property at the time of the accident in May 2007.
                                 -2-                           461
                                                         CA 13-00627

     We nevertheless conclude that the court properly granted
defendants’ motion. It is well settled that an out-of-possession
titleholder lacking control over the property is not liable for
injuries occurring thereon (see Johnson v First Fed. Sav. & Loan
Assn., 19 AD3d 1085, 1086; Bowles v City of New York, 154 AD2d 324,
324-325). Here, defendants met their initial burden of establishing
that they were out-of-possession titleholders lacking control over the
property. Defendants submitted the deposition testimony and an
affidavit of Drayer’s sole owner, who stated that, shortly after the
foreclosure, she and her employees were present at the Marina in order
to finish putting their customers’ boats in storage, but that they
undertook no further activities on the premises after October 12,
2006. Defendants further established that, in April 2007, the
foreclosing bank denied their request for permission to remove
customers’ boats from storage for summer use. The bank also refused
to permit defendants to send out dockage renewal notices to customers
as they had done prior to the foreclosure. At that time, the bank
informed defendants that it had hired the owner of another local
marina to run the Marina and to remove the boats from storage for a
fee. Defendants therefore established that, by the date of the
accident, they no longer possessed, maintained or controlled the
Marina’s property, and plaintiffs failed to raise an issue of fact in
opposition (cf. Johnson, 19 AD3d at 1086; Bowles, 154 AD2d at 324-325;
see generally Zuckerman v City of New York, 49 NY2d 557, 562).




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
