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