Smith v. RMS Residential Properties, LLC, No. 1:2012cv03447 - Document 30 (E.D.N.Y. 2013)
Court Description: ORDER granting 24 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 8/29/2013. (Levy, Joshua)
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Smith v. RMS Residential Properties, LLC Doc. 30 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x ROBERT SMITH, Plaintiff, MEMORANDUM AND ORDER - against - 12 CV 3447 (ILG) (VVP) RMS RESIDENTIAL PROPERTIES, LLC, Defendant. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Robert Sm ith brings this action against RMS Residential Properties, LLC (“RMS” or “defendant”), alleging that he was injured because defendant negligently m aintain ed its property. Currently before the Court is defendant’s m otion for sum m ary judgm ent pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s m otion is hereby GRANTED. BACKGROU N D I. Facts Unless otherwise noted, the following facts are undisputed. 1 Michelina Evangelisti began livin g at 22-20 127th Street, College Point in Queens, New York when she got m arried in 1954. Def.’s Ex. C (“Evangelisti Dep.”) at 11 (Dkt. No. 25-3). She obtained title to the house in 1981 or 1982 after she and her husband divorced. Id. at 1417. In J une 20 0 5, after refinancing the house several tim es, Evangelisti stopped m aking 1 Defendant fails to com ply with Local Civil Rule 56.1(a), which requires a “short and con cise statem ent, in num bered paragraphs, of the m aterial facts as to which the m oving party contends there is no genuine issue to be tried.” Although “[f]ailure to subm it such a statem ent m ay constitute grounds for denial of the m otion,” id., the Court, in its discretion, overlooks defendant’s failure and will not deny the m otion on these grounds. Mays v. Lane, No. 10 Civ. 4810 , 20 12 WL 2395155, at *2 (E.D.N.Y. J une 25, 20 12) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 20 0 1)). 1 Dockets.Justia.com m ortgage paym ents. Id. at 18, 35-36. In 20 0 8, the property was subject to foreclosure and RMS purchased it at an auction. Def.’s Ex. E. After obtaining title to the property, RMS retained Brighton Real Estate Services LLC (“Brighton”) as third-party m anager of the property. Def.’s Ex. D at 12, 23. Brighton, in turn, retained Island Advantage Realty LLC (“Island Advantage”) on April 29, 20 0 8 to sell the property. Def.’s Ex. F (“Yovino Dep.”) at 9-10 . However, Island Advantage determ ined that the property was occupied and “[t]he occupants refused to speak to anyone,” so Island Advantage was “unable to list it for sale because there was no access.” Id. at 17-18 , 21, 33-34. Therefore, Island Advantage m onitored the exterior of the property but was unable to conduct an interior inspection. Id. at 21-24. RMS later discovered that the property was occupied by Evangelisti, her adult daughter, her tenant Marguerite Lizzotte, and Lizzotte’s daughter. Evangelisti Dep. at 9-10 , 45-47, 6364. 2 On August 8 , 20 0 8, RMS served ten day notices to quit occupying the property on Evangelisti, the Lizzottes, and “all other occupants.” Def.’s Ex. G at 22-26. RMS then started eviction proceedings on August 26, 20 0 8 by filling a Notice of Petition Holdover in Civil Court in Queens County. Id. at 1-6. Although a hearing was held on Septem ber 11, 20 0 8 and Evangelisti received several eviction notices, she did not leave the property until late 20 11 or early 20 12. Id.; Evangelisti Dep. at 43-45; Yovino Dep. at 18-21; Def.’s 2 Evangelisti’s son also appears to have lived in the house for som e period of tim e. Id. at 65-66. 2 Ex. H. 3 RMS sold the property through Island Advantage on March 15, 20 12. Yovino Dep. at 14. On August 5, 20 11, while Evangelisti was still living at 22-20 127th Street, Sm ith cam e to visit. Evangelisti Dep. at 61-62, 70 . At this tim e, the bathroom ceiling was visibly leaking near the light fixture such that Evangelisti was afraid to use the light. Id. at 69-72. When Sm ith was in the bathroom , the light fixture fell on his shoulder and neck causing injuries that required m edical attention. Id. at 8 2-86. II. Pro ce d u ral H is to ry Sm ith initiated this action in the Suprem e Court of the State of New York, County of Queens on October 11, 20 11, and RMS rem oved the case to federal court based on diversity jurisdiction on J uly 12, 20 12. Dkt. No. 1. On October 10 , 20 12, Sm ith m oved to rem and the case to state court, which the Court denied on Novem ber 29, 20 12. Dkt. Nos. 4, 12. RMS requested leave to file a third-party com plaint against Evangelisti on Novem ber 15, 20 12, which the Court granted on Decem ber 26, 20 12. Dkt. Nos. 9, 13. RMS filed the third-party com plaint on J anuary 3, 20 13 and Evangelisti has not yet responded. Dkt. No. 14. On J une 11, 20 13, RMS m oved for sum m ary judgm ent arguing that as an out-ofpossession owner, it cannot be held liable for Sm ith’s injuries. Def.’s Mem . (Dkt. No. 25). Sm ith filed his opposition on J uly 12, 20 13, and RMS filed its reply on J uly 26, 20 13. Pl.’s Opp’n (Dkt. No. 28); Def.’s Reply (Dkt. No. 29). D ISCU SSION 3 Evangelisti m ay have attem pted to settle these proceedings out of court during this tim e period, but it is unclear whether any settlem ent negotiations actually happen ed. Evangelisti Dep. at 58 -60 , 67-69. The delay m ay also have been due to legal protections afforded to Evangelisti’s daughter for her m ental illness. Id. at 52-55. 3 I. Le gal Stan d ard s Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to an y m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the eviden ce is such that a reasonable jury could return a verdict for the nonm oving party. A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (quotation om itted). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court deciding a m otion for sum m ary judgm ent m ust “construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quotation om itted). When the burden of proof at trial would fall on the nonm oving party, it ordinarily is sufficient for the m ovant to point to a lack of evidence to go to the trier of fact on an essential elem ent of the non-m ovant’s claim . Celotex, 477 U.S. at 322-23. To defeat a m otion for sum m ary judgm ent, the non-m oving party “m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot “rely on conclusory allegations or unsubstantiated speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 20 11) (quotation om itted). II. Pre m is e s Liability “Prem ises liability, as with liability for negligence generally, begins with duty.” Alnashm i v. Certified Analytical Grp., Inc., 8 9 A.D.3d 10 , 13, 929 N.Y.S.2d 620 (2d Dep’t 4 20 11) (citations om itted). 4 Under New York law, the landowner’s duty to m aintain the prem ises in a reasonably safe condition depen ds on the extent of his or her control. See id. at 14-18 . An out-of-possession landlord, with a lim ited right to reenter, can “only be liable for negligence based on a significant structural or design defect that is contrary to a specific statutory safety provision.” Drotar v. 60 Sweet Thing, Inc., 964 N.Y.S.2d 150 , 152 (1st Dep’t 20 13) (quotation om itted). It is the owner’s burden to m ake a prim a facie showing that it qualifies as an out-of-possession landlord. Danielson v. J am eco Operating Corp., 8 0 0 N.Y.S.2d 421, 423 (2d Dep’t 20 0 5). In addition, the owner bears the burden of “showing that it neither created the hazardous condition nor had actual or constructive notice of its existen ce for a sufficient length of tim e to discover and rem edy it.” Newsom e v. Artale, No. 0 9 Civ. 10 196(LMM), 20 11 WL 5172543, at *2 (S.D.N.Y. Nov. 1, 20 11) (quoting Birnbaum v. N.Y. Racing Assoc., Inc., 8 69 N.Y.S.2d 222, 223 (2d Dep’t 20 0 8)). There is no genuine dispute that RMS was not in possession or control of 22-20 127th Street on August 5, 20 11, and there is no evidence in the record of any contractual relationship between RMS and Evangelisti. See Richardson v. Yasuda Bank & Trust Co. (USA), 772 N.Y.S.2d 595, 595 (1st Dep’t 20 0 4) (finding that defendants “m et their prim a facie burden of dem onstrating their status as out-of-possession own ers” because eviction proceedings after foreclosure sale “had been com m en ced and were pending”). Moreover, there is no genuine dispute that RMS did not have actual or constructive notice of the water dam age because it could not access the interior of the house. Yovino Dep. at 23-24, 33-34. Although plaintiff invokes New York Multiple Dwelling Law § 78 , 4 Because this is a diversity case, New York law applies. See, e.g., Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941). 5 which requires that “[e]very m ultiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair,” “an owner will not be held liable under section 78 where it has com pletely parted with possession an d control of the building.” Worth Distribs., Inc. v. Latham , 451 N.E.2d 193, 195 (N.Y. 198 3). 5 In sum , RMS had no duty to m aintain or repair the property and, therefore, cannot be held liable for Sm ith’s injuries. Accordingly, defendant’s m otion is granted. CON CLU SION For all of the foregoing reasons, defendant’s m otion is hereby GRANTED. SO ORDERED. Dated: Brooklyn, New York August 29, 20 13 / s/ ILG _ I. Leo Glasser Senior United States District J udge 5 Moreover, it is unclear if section 78 applies to this property, sin ce a “m ultiple dwelling” m ust be “occupied as the residen ce or hom e of three or m ore fam ilies living independently of each other.” N.Y. Mult. Dwell. Law § 7. 6
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