SALAZAR v. Nissan Motor Acceptance Corporation, respondent. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Cassandra A. Johnson, J.), entered October 11, 2024. The order granted the motion of the defendant Nissan Motor Acceptance Corporation for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

In March 2021, the plaintiff commenced this action against, among others, the defendant Nissan Motor Acceptance Corporation (hereinafter the defendant) to recover damages for personal injuries that she alleged she sustained as a result of a slip and fall on the sidewalk adjacent to commercial real property (hereinafter the property) owned by the defendant Carol Joy Family Properties, LLC, and leased to the defendant Nemet Motors, LLC. The plaintiff alleged, among other things, that at the time of the accident, the defendant held a mortgage on the property.

In May 2024, the defendant moved for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff opposed the motion. In an order entered October 11, 2024, the Supreme Court granted the defendant's motion. The plaintiff appeals.

For a defendant to be held liable in tort, it must have owed the injured party a duty of care (see Suero-Sosa v. Cardona, 112 AD3d 706, 707). 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 id.; Forbes v. Aaron, 81 AD3d 876, 877). Where none of these factors is present, a party cannot be held liable for injuries caused by a dangerous or a defective condition (see Suero-Sosa v. Cardona, 112 AD3d at 707).

A mortgagee in possession is one that takes control of mortgaged land by agreement with the mortgagor, usually upon default of the loan secured by the mortgage (see Mardenborough v. U.S. Bank N.A., 201 AD3d 641, 644). A mortgagee may become a mortgagee in possession where the mortgage itself gives the mortgagee the right to enter and take possession of the mortgaged premises and receive the rents and profits (see id.).

Here, the defendant established, prima facie, that it was an out-of-possession mortgagee that did not owe a duty to the plaintiff by submitting, among other things, an affidavit of its employee, who averred that at all relevant times, the defendant did not own, possess, or control the property (see Suero-Sosa v. Cardona, 112 AD3d at 707; Bowles v. City of New York, 154 A.D.2d 324). In opposition, the plaintiff failed to raise a triable issue of fact (see Suero-Sosa v. Cardona, 112 AD3d at 707; Pollard v Credit Suisse First Boston Mtge. Capital, LLC, 66 AD3d 862).

The plaintiff's contention that the defendant's motion was premature is without merit. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]; Morales v. Amar, 145 AD3d 1000, 1003). Here, the plaintiff failed to establish either basis, and the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion (see Morales v. Amar, 145 AD3d 1000; Suero-Sosa v. Cardona, 112 AD3d at 708).

The parties' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

DUFFY, J.P., CHRISTOPHER, LANDICINO and QUIRK, JJ., concur.