RANDAZZO v. Consolidated Edison Company of New York, Inc., et al., Defendants. (2014)

Frank RANDAZZO, etc., et al., Plaintiff–Appellants, v. The BANK OF NEW YORKMELLON CORPORATION, as Trustee of CIT Mortgage Loan Trust 2007–1, et al., Defendants–Respondents, Consolidated Edison Company of New York, Inc., et al., Defendants.

Decided: October 07, 2014

SWEENY, J.P., RENWICK, ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, JJ.

Gorayeb & Associates, P.C., New York (Mark J. Elder of counsel), for appellants. K & L Gates LLP, New York (David S. Versfelt of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered January 8, 2014, which granted defendants The Bank of New York Mellon Corporation (BNY) and Vericrest Financial, Inc.'s motion to dismiss the complaint against them pursuant to CPLR 3211(a)(1) and (a)(7), unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated against said defendants.

The documentary evidence submitted by defendants was substantially the same as the evidence submitted by defendant BNY in a companion wrongful death action arising from the same deadly fire. As we previously decided, this evidence failed to conclusively refute plaintiffs occupants' factual pleadings alleging that defendant Domingo Cedano, owner of the multiple dwelling, had abandoned the premises within the meaning of Real Property Law and Actions 1307(1) (see Lezama v. Cedeno, 119 AD3d 479 [1st Dept 2014] ).

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