As noted in our earlier articles, "Why Many Defective Sidewalk Cases in New York Are Doomed to Fail" and "Despite Admin Code 7-210, NYC is Responsible to Maintain Tree Wells," New York's legislature made a fundamental change to tort law back in 2003, shifting responsibility to maintain the sidewalk immediately fronting property from the City of New York to the owner of the abutting property. In light of the ongoing financial downturn, an important - and all too frequent - question has arisen: who is responsible to maintain those areas of sidewalk if the property is in the process of foreclosure?

Fortunately, in a decision that was handed down on February 22, one of New York's appellate courts has given us some guidance.

In Forbes v. Aaron, which involved a trip and fall over a New York City sidewalk, the plaintiff properly sued the owner listed on the title of the property that abutted the sidewalk, as well as the bank which had commenced a foreclosure action on the property before the date of the accident.

In affirming the trial court's decision that dismissed the bank from the case, and held the titled owner of the property liable, the appellate court stated as follows:

""The entry of a judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until the sale is actually conducted" (Bethel United Pentecostal Church v Westbury 55 Realty Corp., 304 AD2d 689, 692-693; see Nutt v Cuming, 155 NY 309; Carnavalla v Ferraro, 281 AD2d 443). Therefore, Aaron retained her title and interest in the property subsequent to the issuance of the judgment of foreclosure and sale until the date of the public auction, August 14, 2008, which took place after the accident occurred."
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer