
Robert A. Marsico
Partner
201-896-7165 rmarsico@sh-law.comFirm News
Author: Robert A. Marsico
Date: April 29, 2015

Partner
201-896-7165 rmarsico@sh-law.comIn a recent decision, the Appellate Division refused to impose liability on Bank of America, N.A. (BOA) for a slip-and-fall injury that occurred on an icy sidewalk abutting a foreclosed property. The decision in McRoy v. Eskander turned on whether the bank was considered a “mortgagee in possession.”
The plaintiff, Matthew McRoy, injured his arm when he slipped and fell on snow and ice that had accumulated on a sidewalk abutting a four-unit apartment building owned by defendant Waheed Z. Eskander. Eskander and his wife executed a note and mortgage to BOA, using the building as collateral. After they defaulted, a final judgment of foreclosure was entered in favor of BOA for $583,362.14. When the plaintiff fell, the sheriff’s sale had not yet occurred, and the building was vacant.
The plaintiff began a personal injury suit against Eskander and BOA, alleging they were negligent in maintaining the premises, including the sidewalk. According to the court’s opinion. BOA did not maintain the premises or the sidewalk, with the exception of performing yard work on one occasion. BOA did inspect the foreclosed property periodically to ensure it was vacant and paid property taxes and a water bill.
The appeals court affirmed the trial court’s order, which dismissed the case against BOA on summary judgment. The panel agreed that the mortgage lender was not liable for the plaintiff’s injuries.
The decision cited long-standing precedent in New Jersey that when the mortgagee takes the management and control of the property out of the hands of the mortgagor, the mortgagee becomes a mortgagee in possession. The Appellate Division further noted that the duty of a mortgagee in possession is that of a provident owner, which includes the management and preservation of the property. A mortgagee in possession is liable for injuries arising from its failure to perform legal duties imposed upon the owner of the property.
In this case, the appeals court concluded that there was no evidence that BOA exercised the requisite dominion and control over the premises to be deemed a mortgagee in possession. As further explained in the opinion:
“BOA never supplanted or supplemented Eskander’s control or management of the property, who chose to let the building be vacant and ignored his duties as a landowner by failing to remove snow and ice from the abutting sidewalk. But for one instance when BOA’s agent did some yard work, BOA never expended any effort to preserve or improve the premises, including the adjoining sidewalk, in any respect.”
The appeals court also found that paying the water bill and property taxes, as well as periodically verifying that the property was vacant, were undertaken to protect the lender’s collateral. Because these actions were not intended to exert any control over the management of the property, they did not convert BOA into a mortgagee in possession.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

ROI-NJ Continues to Feature Donald Scarinci and Donald M. Pepe on Annual Influencers in Law List Donald M. Pepe and Donald Scarinci of Scarinci Hollenbeck have once again been named to ROI-NJ’s 2026 Influencers: Law List, recognizing attorneys who continue to shape New Jersey’s legal and business landscape. The annual list highlights legal professionals whose […]
Author: Scarinci Hollenbeck, LLC

Scarinci Hollenbeck is proud to share that two highly acclaimed retired judges who now serve as Of Counsel to the firm, Hon. Ira E. Kreizman, J.S.C. and Hon. Ronald Lee Reisner, J.S.C., will be honored at the Monmouth Bar Association’s Golden Gala. The event recognizes members of the Monmouth Bar Association who have practiced law […]
Author: Scarinci Hollenbeck, LLC

Scarinci Hollenbeck is pleased to announce that NJ Real Estate Partner, Joe DeMarco, has been named a 2026 Leaders in Law Award Honoree by NJBIZ in the Real Estate: Construction, Environmental, Leasing category. The NJBIZ Leaders in Law program recognizes attorneys and general counsels whose professional accomplishments, leadership, and service to their communities demonstrate a […]
Author: Scarinci Hollenbeck, LLC

Scarinci Hollenbeck is pleased to announce that Partner John M. Scagnelli has been re-elected to serve on the Board of Trustees of the Licensed Site Remediation Professionals Association (LSRPA) for an additional two-year term. LSRPA is the statewide professional organization representing New Jersey’s Licensed Site Remediation Professionals (LSRPs), playing a central role in advancing environmental […]
Author: Scarinci Hollenbeck, LLC

Scarinci Hollenbeck is pleased to announce that Robert E. Levy has been re-certified as a Certified Civil Trial Attorney by the Supreme Court of New Jersey. This re-certification, combined with Levy’s existing designation as a Certified Criminal Trial Attorney, places him among less than one percent of all certified attorneys in New Jersey to hold […]
Author: Scarinci Hollenbeck, LLC

Scarinci Hollenbeck, LLC is pleased to announce that Donald M. Pepe, a partner in the firm’s Real Estate, Land Use and Development Group, has once again been named to ROI-NJ’s Influencers: Real Estate list for 2025. Donald Pepe has been included on the ROI Influencers: Real Estate list each year since 2022, reflecting his continued […]
Author: Scarinci Hollenbeck, LLC
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!