| Pollard v Credit Suisse First Boston Mtge. Capital, LLC |
| 2009 NY Slip Op 07610 [66 AD3d 862] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Exzavia Pollard et al., Appellants, v Credit Suisse FirstBoston Mortgage Capital, LLC, et al., Respondents. (And a Third-PartyAction.) |
—[*1] Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Steven R. Kramer andGeraldine A. Cheverko of counsel), for respondents Credit Suisse First Boston MortgageCapital, LLC, and Fairbanks Capital Corp., now known as Select Portfolio Servicing, Inc. Sweeney, Gallo, Reich & Bolz, LLP, Rego Park, N.Y. (Rashel M. Mehlman and Michael H.Reich of counsel), for respondent TCIF, LLC.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Kings County (Jackson, J.), dated January 25, 2008, which grantedthe motion of the defendants Credit Suisse First Boston Mortgage Capital, LLC, and FairbanksCapital Corp., now known as Select Portfolio Servicing, Inc., and the separate motion of thedefendant TCIF, LLC, for summary judgment dismissing the complaint insofar as assertedagainst them, and (2) a judgment of the same court entered March 19, 2008, which, upon theorder, is in favor of the defendants and against them dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in this action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The defendants having established, prima facie, their entitlement to summary judgment, itwas incumbent on the plaintiffs to come forward with evidence establishing a triable issue of fact(see [*2]Zuckerman v City of New York, 49 NY2d 557[1980]). The plaintiffs failed to meet that burden. Neither the defendant Credit Suisse FirstBoston Mortgage Capital, LLC, a mortgage holder, nor the defendant Fairbanks Capital Corp.,now known as Select Portfolio Servicing, Inc. (hereinafter Fairbanks), a servicer of the mortgageon the property, owned or controlled the premises at issue, or assumed any duty to the plaintiffs,which might serve as a predicate for liability (see Gibbs v Port Auth. of N.Y., 17 AD3d 252 [2005]).Furthermore, neither Credit Suisse First Boston Mortgage Capital, LLC, Fairbanks, nor thedefendant TCIF, LLC, which was a mortgagor that became an owner through a foreclosureproceeding, had actual or constructive notice of the lead-paint condition alleged to have causedinjury (see Chapman v Silber, 97 NY2d 9 [2001]).
The plaintiffs' remaining contentions are without merit. Rivera, J.P., Florio, Miller andAustin, JJ., concur.