William Federiconi, Plaintiff, v. KCUFUOY IRREVOCABLE TRUST 1999 (2022)

Supreme Court, New York,

William Federiconi, Plaintiff, v. M & T Bank KCUFUOY IRREVOCABLE TRUST-1999, Defendant.

Index No. 2019-708

Decided: December 22, 2022

Gary A. Lefkowitz, Esq. Schiller Knapp Lefkowitz & Hertzel, LLP Counsel for Defendant M & T David A. Harper, Esq. Law Office of David A. Harper, P.C. Counsel for Plaintiff

On August 18, 2022, Defendant, M & T Bank (hereinafter "Defendant"), by and through its attorneys of record, Schiller Knapp Lefkowitz & Hertzel, LLP, by Gary A. Lefkowitz, Esq., filed a motion pursuant to CPLR §§ 3212 and 3211, seeking an order dismissing the Plaintiff's cause of action. In support of the motion, Defendant filed a Notice of Motion by Gary A. Lefkowitz, Esq., dated August 17, 2022; Affidavit of Ann Schlifke, dated August 17, 2022; and Affirmation of Gary A. Lefkowitz, Esq., dated August 16, 2022, with Exhibits A through K. In opposition, Plaintiff, William Federiconi (hereinafter "Plaintiff"), by and through his attorneys of record, the Law Office of David A. Harper, P.C., by David A. Harper, Esq., filed an Affidavit by William Federiconi, dated September 15, 2022, with Exhibits A through F, and Affirmation by David A. Harper, Esq., dated September 9, 2022. In Reply, Defendant filed the Reply Affirmation by Gary A. Lefkowitz, Esq., dated September 27, 2022.

On August 23, 2022, Plaintiff filed its own motion pursuant to CPLR § 3212, seeking an order for partial summary judgment on the issue of liability against Defendant. In support of the motion, Plaintiff filed a Notice of Motion, dated August 16, 2022; Affidavit of William Federiconi, dated August 17, 2022, with Exhibits A through P, and Memorandum of Law by David A. Harper, Esq., dated August 16, 2022. In opposition, Defendant filed Affirmation of Gary A. Lefkowitz, dated August 29, 2022, with Exhibits A through J.

Defendant KCUFUOY Irrevocable Trust has not appeared in this action. This Decision will address both pending motions.

February 7, 2023February 7, 2023FACTUAL AND PROCEDURAL

BACKGROUND

In 1998, Mary Ann Smith borrowed money from Statewide Funding Corp and secured the loan with a purchase money mortgage on property located at 34-36 Kreisel Terrace, Amsterdam, New York (hereinafter "the Kreisel Terrace property"). In 1999, Mary Ann Smith deeded the property to KCUFUOY  ¹ Irrevocable Trust (hereinafter "the Trust"). Defendant was the successor in interest, as mortgagee, by assignment in 2011. Having defaulted on the mortgage obligation, M & T commenced a foreclosure action in December 2011. On March 27, 2017, due to a flood which occurred at 34-36 Kreisel Terrace, allegedly as a result of frozen pipes, the retaining wall behind Kreisel Terrace and in between Kreisel Terrace and Forbes Street, which was located down the hill from Kreisel Terrace, failed. Plaintiff's property is located at 194 Forbes Street. In March 2017, the City of Amsterdam (hereinafter "the City") issued code violations to Defendant and notified the tenants of 194 Forbes Street that the property was no longer inhabitable. Since 1998, the property located at 194 Forbes Street was owned by Plaintiff's father, Ralph Federiconi. Defendant obtained a judgment and foreclosure and sale on the mortgage secured by 34-34 Kreisel Terrace September, 2018. In December of 2018 Defendant demolished the Kreisel Terrace house, filled in the foundation and seeded the property. Ralph Federiconi died on December 17, 2018. Defendant became the purchaser of 34-36 Kreisel Terrace at a foreclosure sale held on January 24, 2019. The property located at 194 Forbes Street passed to Plaintiff by probate of Ralph Federiconi's will, March, 2019. On September 9, 2019, Plaintiff commenced an action against Defendant for nuisance resulting from the flood and the destabilization of the rear yard as a result of the retaining wall collapse.

Defendant KCUFUOY Irrevocable Trust-1999 was not served with process in this action and has been dropped from the action, but the caption has not been amended.

Defendant's pending motion alleges that Plaintiff does not have standing as he was not the owner of 194 Forbes when the alleged flood happened. Defendant further alleges that it was not the owner of 34-36 Kreisel property at the time of the alleged flood, nor was it the mortgagee in possession, and therefore, has no liability owed to Plaintiff or his father's estate. Additionally, Defendant alleges that the landslide that allegedly resulted from the flood was an extraordinary occurrence and, therefore, unforeseeable. Furthermore, pursuant to Real Property Actions and Proceedings Law (hereinafter "RPAPL") §§ 1307 and 1308 (hereinafter "the zombie laws"), Defendant's obligations to secure the property at 34-36 Kreisel Terrace due to being the foreclosing mortgagee, do not extend to form a duty owed to Plaintiff and any violation of said RPAPL sections does not create a private right of action. Defendant alleges it owed no duty to Plaintiff and further, the occurrence was unforeseeable, so even if negligence were to be asserted against it, that cause of action would fail. Additionally, the cause of the flood is unknown and Plaintiff is unable to point to any of Defendant's actions or inactions that may have resulted in the flood. Moreover, Defendant claims the City of Amsterdam (hereinafter "the City") undertook a duty with regard to maintaining retaining walls by virtue of its Charter. Lastly, Defendant claims that Plaintiff assumed the risk associated with the destabilized rear yard at 194 Forbes when he accepted the property after probate of his father's will, and further, has not only failed to mitigate his damages, but has waited too long to assert any rights it may have, therefore his action should be barred by the doctrine of laches.

Plaintiff asserts that even if the action was incorrectly commenced in Plaintiff's individual capacity as opposed to by the Estate of his father, the wrong is a continuous one which would toll the statute of limitation, another action could be commenced and then joined with the current one, by the Estate of Ralph Federiconi. Plaintiff also cites to Mortimer v. East Side Savings Bank for the allegation that a mortgagee in possession can be responsible for any loss or damage occasioned by its willful default or gross neglect in this regard (251 AD 97 [4th Dept 1937]). Further, Plaintiff claims he has an independent cause of action because Defendant refused to abide by any of the citations it was issued as a result of the slide, failed to stabilize the rear yard, and therefore the property at 194 Forbes remains uninhabitable as confirmed by hearing and decision by the City of Amsterdam in 2020. Further, while the zombie laws may not create a private right of action, RPAPL § 841 does. Lastly, Plaintiff asserts that the common law recognizes a landowner's duty for lateral support so as not to cause landslide to his/her/its neighbor.

Thomas McQuade was the housing code inspector for the City of Amsterdam between 1989 and 2020 (see McQuade Deposition transcript at p 5 ¶¶3-10). He testified that prior to the 2017 incident, the pipes at Kreisel Terrace had burst on January 10, 2015 (see id. at pp 10-11). His testimony indicates that at that time, the City shut off the curb box, which was "a little touchy" as "best they could" — "they couldn't get it shut off all the way" and then on January 12, 2015, "they pumped out the basement enough to shut the main valve in the basement so that [the City] could get the water shut off completely (id. at pp 11 ¶ 23; 12 ¶1-6). He further testified that "[j]ust shutting the curb box off, it wasn't able to shut the water completely off" (id. at p 12 ¶¶ 8-9). Regarding the 2017 incident, he testified based on his notes that

when it froze the second time in the cellar to where now there was no way to shut it off, because it's frozen behind the shutoff valve, so the only way to get the water shut off going into the structure at that point was to dig the shutoff, the curb box in the street, in order to get the water shut off to the building at that point, because the pipes froze and burst inside, in the cellar, ahead of the main shutoff valve

(Id. at pp 12-13).

Regarding the retaining wall behind Kreisel Terrace, Mr. McQuade testified that Mary Ann Smith owned it "until the bank finally foreclosed on the property, then they became the owner" (id. at p 18 ¶¶ 10-12). He testified that "[they] have never really been able to ascertain as to exactly when those walls were constructed" (id. at ¶¶ 16-18). However, he also testified that the previous city engineer, Rich Phillips, "had the property surveyed, and it showed that that retaining wall was clearly owned by the property owner of 34, 36 Kreisel" (id. at p 19 ¶¶ 5-8). In his experience, when there had been issues with retaining walls within the City, he would either cite the owner of the property to which the retaining wall belonged, or cite both adjoining owners, "and leave it up to both owners to get a survey done to ascertain as to who actually owned the retaining wall" — the property owners would remedy the situation (id. at p 20 ¶¶ 3-20). Conversely if, after investigation, he found out that the retaining wall belonged to the City, he would refer it to the city engineer (id. at p 21 ¶¶ 3-13).

Mr. McQuade described the scene at Kreisel Terrace in March 2017:

When I got there, you know, the water was filled up enough in the cellar where in this case there was a rear door coming out the back of the cellar, underneath the rear porch, well, not underneath the rear porch, but like an overhang-type thing where you can go out to the rear yard. Well, that's where the water just went out of the cellar and just running on the rear yard, and saturated the entire rear yard, the ground to where it was, you know, loaded with water

. . .

With all he hydrostatic pressure on that 150 year old, or whatever retaining wall, it just couldn't take it anymore

(Id. at pp 29-30).

Michael Clark was the City Engineer starting 2019 but was not the City Engineer in 2017 (see Clark Deposition transcript at p 5). He testified that he does not know when the retaining wall between Kreisel Terrace and Forbes Street was constructed and does not know who owns it (see id. at p 11). He testified that in his tenure, there have been requests from residents contacting the City to inspect the retaining walls located on their properties for stability (id. at p 14). Mr. Clark visited the site of the retaining wall at issue here, from the Forbes Street side, sometime in 2020 (id. at p 23). During that visit he observed the condition of the retaining wall and respective properties as follows:

. . . from the Forbes Street side there was a partial failure of the concrete retaining wall, it had, it had failed by over-turning, and there were concrete chunks, and some of the fill from the backfill, in other words, from the lot on Kreisel Terrace. Now on the — that had shifted downhill on the Forbes Street property

. . .

. . . the wall had failed by tipping, overturning, and there was fill, and it had broken apart, and it had slid on to what appears to be the back portion, the backyard portion of 194 Forbes Street

(Id. at pp 23-24; 29).

Mr. Clark confirmed that code enforcement has subsequently taken action to declare the property at 194 Forbes Street unsafe (id. at p 27 ¶¶ 9-13).

Portions of the City Charter in the record before the Court contain a clause as follows:

The powers, duties and responsibilities of the Director of Public Works shall include:

. . .

c. Responsibility for the construction, maintenance, leaning and repair of the streets, sidewalks, sewers, public parking lots, retaining walls, public buildings, facilities and structures, except as may otherwise be provided by law. . .

(see Exhibit 2 annexed to Clark deposition transcript).

Attached as Exhibit G to William Federiconi's Affidavit is an Affidavit of Patrick Currie, who did winterization work for Safeguard between 1993 and 2020 (see Currie Affidavit at pp 1-2). It is undisputed that M & T hired Safeguard at some point in 2015 to maintain the Kreisel property. Mr. Currie has no recollection of any particulars, nor any records, pertaining to work he may or may not have done at the Kreisel Terrace location (id.).

Annexed as Exhibit J to Mr. Federiconi's Affidavit is a citation from the City of Amsterdam, by Thomas McQuade, issued to the Trust, regarding the Krisel Terrace property, dated March 30, 2017. It states that "[p]roperty owners below on Forbes Street had to be evacuated. Measures will need to be taken to stabilize your rear yard and reconstruct a retaining wall or other means to prohibit your rear embankment from collapsing any further as soon as possible" (Citation March 30, 2017, annexed as Exhibit J to Federiconi Affidavit).

Annexed as Exhibit H to Mr. Federiconi's Affidavit is a citation from the City of Amsterdam, by Thomas McQuade, issued to Defendant, regarding the Krisel Terrace property, dated October 12, 2017. Among other things, the citation states,

Property owners/tenants below on Forbes Street had to be evacuated due to landslide and structural damage to their structures. Measures will need to be taken to stabilize your rear yard and construct a new retaining wall or other means to prohibit your remaining rear yard embankment and the neighboring east and west side yards from collapsing any further onto properties below on Forbes Street as soon as possible

(Citation October 12, 2017 annexed as Exhibit H to Federiconi Affidavit).

Annexed as Exhibit I to the Fedeirconi Affidavit is a report by the Milovia Group regarding 194 Forbes Street, dated October 17, 2017 (Milovia Group report). Relevant portions state

When the western segment(s) of retaining wall collapsed, it failed by overturning. Based on the sequence of events, the build-up of large hydrostatic forces from the waterline break resulted in too high of loads for the wall to resist

. . .

It is unclear what remaining forces exist behind the wall, since no soil probes have yet been conducted to determine the weight of the soil and the height of the water table

. . .

. . . it is clear that the habitability of the home is dependent on the retaining wall's ability to retain the soil. If any portion(s) of this wall were to fail, it would pose an immediate threat to the home and its occupants

(Milovia report at p 2). One of the Milovia engineer's report recommendations is for a new wall to be built (id. at p 3). The Justification for this, among other things is that

In order for retaining walls to properly support both vertical and lateral forces, they must be able to resist both sliding and overturning. The gravity wall that failed behind your home failed by overturning, and the adjacent wall segments are also at risk for failure, due ot the large cracking, and the possibility that similar loading conditions (improper drainage) can lead to further collapse of this wall

(Id.).

Citing the Plaintiff's own Milovia report, the City of Amsterdam cited Ralph Federiconi  ² , for the unsafe condition of 194 Forbes Street, on October 1, 2020, and directed a hearing on the matter (see Exhibit N to Federiconi Affidavit). After the hearing, Plaintiff's property was deemed unsafe and Plaintiff was directed to correct the existing condition (see Exhibit O to Federiconi Affidavit).

APPLICABLE LAW

On a motion for summary judgment, the movant bears the initial burden of setting forth evidentiary facts sufficient to entitle that party to judgment as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). If the moving party meets this burden, the opposing party must then produce "evidentiary proof in admissible form" to show that a question of fact exists requiring a determination by a trier of fact (id.). When determining a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party (Vega v. Restani, 18 NY3d 499, 503 [2012]).

In order to be successful on a cause of action for nuisance, a plaintiff must be able to demonstrate that there was interference of a substantial nature, of intentional origin, and unreasonable character, with plaintiff's property right to use and enjoy his/her land, which was caused by defendant's conduct or failure to act (see Hitchcock v. Boyack, 277 AD2d 557, 2000 NY Slip Op 09286 [3d Dept 2000]). Pursuant to Broxmeyer v. United Capital Corp, "[e]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed" (79 AD3d 780, 782, 2010 NY Slip Op 09204 [2d Dept 2010], citing Wienberg v. Lombardi, 217 AD2d 579 [2d Dept 1995] [internal quotations omitted]; see also DelVecchio v. Collins, 178 AD3d 1336, 2019 NY Slip Op 09344 [3d Dept 2019] [ordinarily, whether a use constitutes private nuisance turns on a question of fact]; Weinberg v. Lombardi, 217 AD2d 579 [2d Dept 1995]; Overocker v. Madigan, 113 AD3d 924, 2014 NY Slip Op 00158 [3d Dept 2014] [the nature of the interference with adjoining property remained issue of fact]; Jenkins v. Etlinger, 78 AD2d 705 [3d Dept 1980] [amount of fill existing on adjoining land remained issue of fact]; see also Burk v. High Point Homes 22 Misc 2d 492, 494-95 [defendant's erection of a retaining wall which resulted in water accumulation on defendant's land and washing loose dirt, sand and mud onto plaintiff's properties "spell[d] nuisance").

RPAPL §§ 1307 and 1308 places a duty on a mortgagee of a vacant property to maintain the property, and among other things winterize vacant properties (see RPAPL §§ 1307 & 1308). In Snellinger v. Federal National Mortgage Association, the US District Court for the Eastern District of New York, citing legislative intent, held that the zombie laws do not provide citizens a private right of action (2021 WL 1063344 [SDNY 2021]). However, the court in Snellinger refused to dismiss the cause of action brought by plaintiff against defendants under a negligence cause of action, holding that the defendants may have owed a duty to plaintiff pursuant to those sections depending on the control it exercised over the property, and plaintiff could allege a breach of that duty against defendants (see id. at *5-6). In that case, as in this case, defendants alleged that the zombie laws shielded them from liability as a mortgagee out-of-possession because they did not maintain, control, or exercise rights to re-enter the premises (see id. at *6 [distinguishing Moran v. Regency, 20 AD3d 305, 2005 NY Slip Op 05864 [1t Dept 2005]]). However, the Court in Snellinger declined to conclude as a matter of law that the defendants did not owe a duty to maintain the property to the plaintiffs because issues of fact remained regarding the amount of control over the property that defendants exercised (id).

A mortgagee in possession

. . . is bound to employ the same care and supervision over the mortgaged premises that a reasonably prudent owner would exercise in relation to his own property; he is bound to make reasonable and needed repairs, and is responsible for any loss or damage occasioned by his willful default or gross neglect in this regard; while the may not burden the estate by the expenditure of money for unnecessary reparation, he is entitled to be reimbursed for such improvements as are required for the preservation and beneficial occupancy of the property.

(Mortimer v. East Side Savings Bank, 251 AD 97, 100 [4th Dept 1937]; see also Allen v. Echeverria, 128 AD3d 738, 2015 NY Slip Op 04075 [2d Dept 2015] [a mortgagee in possession should employ the same degree of care over the mortgaged property as a reasonably prudent property owner]). Despite all statutory updates regarding foreclosure actions, the question as to whether an entity is a mortgagee in possession remains one of fact for the jury to decide (see Barson v. Mulligan, 29 Bedell 306 [1908]; see also City National Bank v. 424 Lafayette Ave, 30 Misc 3d 1236(A) [Kings Co, 2011]; 839 Cliffside v. Deutsche Bank, 2018 WL 4608198 [EDNY 2018]).

New York Appellate Division, Third Department, has held that anyone who facilitates a nuisance may be liable (see Hine v. Aird-Don, 232 AD 359 [3d Dept 1931]). And, although recognizing the origins of the nuisance cause of action in landowner liability, subsequent cases have not negated the Restatement of Tort's interpretation that liability has extended to any person for activities that produce spill effects in neighboring properties (see Nassau County v. Buckeye Pipeline, 29 Misc 3d 1219 (A), citing Restatement Second of Torts § 834). Specific to continuing harm, the Restatement states,

Activities that create a physical condition differ from other activities in that they may cause an invasion of another's interest in the use and enjoyment of land after the activity itself ceases. When the invasion continues only so long as the activity is carried on, a person who ceases to have any part in the activity is not liable for the continuance of the invasion by others. But if the activity has resulted in the creation of a physical condition that is of itself harmful after the activity that created it has ceased, a person who carried on the activity that created the condition or who participated to a substantial extent in the activity is subject to the liability for a nuisance, for the continuing harm. His active conduct has been a substantial factor in creating the harmful condition and so long as his condition continues the harm is traceable to him. This is true even though he is no longer in a position to abate the condition and to stop the harm.

(Restatement 2d Torts § 834 [e]).

According to Town of Oyster Bay v. Lizza Industries, a nuisance is time barred even where continuous wrong doctrine is asserted, if the wrong can be traced to a discrete wrong that occurred outside of the statute of limitation timeframe (22 NY3d 1024, 2013 NY Slip Op 08370 [2013]). However, where a Plaintiff becomes the owner of the affected property and the condition that is alleged to constitute the nuisance continues, the plaintiff is not barred by the statute of limitation as far as the condition continues after his entering into the ownership of the affected parcel (see Lucchesi v. Perfetto, 72 AD3d 909, 2010 NY Slip Op 03292 [2d Dept 2010]). In Lucchesi, the defendant had deposited fill on the adjacent parcel in 1996-97. Plaintiff came into possession of the adjacent parcel in 2001 and commenced suit against defendant in 2003 based on a theory of nuisance. The Appellate Division, Second Department, held that the lower Court should have granted defendant's summary judgment dismissing the nuisance and trespass cause of action "only insofar as those causes of action seek damages for acts of nuisance and trespass alleged to have occurred more than three years before the action was commenced" (id. at 912). The continued presence of the fill was seen as an act of continuous nuisance giving rise to successive causes of action under the continuous wrong doctrine (id.). The Third Department follows this reasoning also (see generally Gates v. AT & T, 100 AD3d 1216, 2012 NY Slip Op 07923 [3d Dept 2012] [defendant's failure to repair road and its drainage facilities resulted in continued erosion damage to plaintiff's property]; see also Pilatich v. Town of New Baltimore, 100 AD3d 1248, 2012 NY Slip Op 07941 [3d Dept 2012] [continued damage caused to plaintiff's property due to defendant's wall and iron posts]).

Voluntary assumption of risk would not bar recovery, but merely diminish the amount of damages otherwise recoverable and questions of fact would prohibit a court from deciding whether a party assumed the risk as a matter of law (see State v. Fermenta, 160 Misc 2d 187 [Suffolk Co, 1994]). Further, when assumption of risk is adopted as a defense, the availability of a reasonable alternative becomes a particularly important determination (see Restatement 2d Torts § 840c [d]). Specifically, "[t]he plaintiff is not required to forego a valuable right or privilege, such as the use of his own land or dwelling, in order to avoid assuming the risk arising from the defendant's nuisance" (id.). Additionally,

The plaintiff's acceptance of the risk is not to be regarded as voluntary where the defendant's tortious conduct has forced upon him a choice of courses of conduct, which leaves him no reasonable alternative to taking his chances. A defendant who, by his own wrong, has compelled the plaintiff to choose between two evils cannot be permitted to say that the plaintiff is barred from recovery because he has made the choice. Therefore, where the defendant is under a duty to the plaintiff, and his breach of duty compels the plaintiff to encounter the particular risk in order to avert other harm to himself, his acceptance of the risk is not voluntary, and he is not barred from recovery. The same is true where the plaintiff is forced to make such a choice in order to avert harm to a third person. It is true likewise where the plaintiff is compelled to accept the risk in order to exercise or protect a right or privilege, of which the defendant has no privilege to deprive him. The existence of an alternative course of conduct which would avert the harm, or protect the right or privilege, does not make the plaintiff's choice voluntary, if the alternative is one which he can not reasonably be required to accept.

(Restatement 2d of Torts § 496E [c]).

LEGAL ANALYSIS

The chronology of events is not disputed. The slope of the Kreisel property failed in 2017; Tenants of the Forbes property were directed to evacuate the property and citations were issued by the City in March 2017, calling for the correction of the condition existing on the Kreisel Terrace property; Judgment of foreclosure and sale was granted to M & T September, 2018; M & T demolished and leveled the house at Kreisel Terrace December, 2018; Defendant became the titled owner of Kreisel Terrace property after the foreclosure sale in January, 2019; Plaintiff became the titled owner of the affected, Forbes property March, 2019. As of October 2020, the Forbes property remains uninhabitable. While compliance with RPAPL §§ 1307 and 1308 do not make Defendant a mortgagee in possession, Defendant's motion arguments assumes as fact that M & T was not a mortgagee in possession until they legally took title in January 2019. However, like Snellinger and Barson supra, the record before the Court does not establish that, as a matter of law that Defendant was not a mortgagee in possession sooner than January 2019. The foreclosure was commenced in 2011. At that time, M & T was aware that Mary Ann Smith had transferred the property to the Trust and the Trust did not appear in the foreclosure matter. Defendant had no communication from either Smith or the Trust since prior to the mortgage default in 2011 (Affidavit Schlifke at p 3 ¶ 14). In 2015 Defendant learned that the house at Kreisel Terrace was vacant and that pipes had leaked in the property which prompted it to hire a third party (Safeguard) to fulfill their maintenance obligations (see Affidavit of Schlifke at p 2 ¶ 8). In fact, in December 2018, Defendant demolished the house and levelled the property prior to the foreclosure sale, a fact which belies their claim that they did not have control over the property prior to the foreclosure sale. The Court cannot, based on these facts, rule as a matter of law that Defendant was not a mortgagee in possession prior to the foreclosure sale in January, 2019. This alone would suffice to defeat Defendant's motion. Further, it is worth mentioning that if the jury finds that Defendant was, in fact, a mortgagee in possession, then pursuant to Mortimer supra, Defendant would owe a duty to the adjoining landowner, here Plaintiff, for any nuisance created while maintaining or failing to maintain the property at Kreisel Terrace. Incidentally, the fact that Defendant was aware of the conditions of the pipes and the vacancy of the property as early as 2015 makes it so that the subsequent leak in 2017 and alleged resulting landslide, are not extraordinary events, as attorney Lefkowitz would have the Court believe (c.f., Lefkowitz Affirmation at pp 8-9). Moreover, the issue of foreseeability is generally best left for the trier of fact (see Sanchez v. State, 288 AD2d 647, 2001 NY Slip Op 09069 [3d Dept 2001])

Even discounting the issue of fact above, the record indicates that Defendant was the title owner of the property at Kreisel Terrace between January, 2019 and 2020, when the property was sold to a third party. Plaintiff became the owner of the Forbes property March, 2019 and is the party that brought a cause of action for nuisance against the owner of the adjacent parcel, herein Defendant, for nuisance that it allegedly created and which continued throughout the entire time Defendant owned Kreisel Terrace (and continues to date) — to wit the destabilization of soil of the rear yard of Kreisel Terrace, which in turn continues to make Forbes property uninhabitable. Applying Lucchesi to these facts, it is evident that Plaintiff had a cause of action against Defendant at least as early as March 2019. The suit was brought in September 2019. There is no question that Plaintiff's action is timely.

Defendant's argument that Plaintiff assumed the risk by accepting the property after his father died, being fully aware of the condition of the property, is equally unconvincing. Plaintiff's choice would have been to accept the property that he inherited as is, or forego his right to the property because of the condition that is alleged to have been created by Defendant. This appears to be a clear case where the existence of the alternative course of conduct — relinquishing his right to the property to avert the harm — is an alternative which he cannot be reasonably required to accept (see Restatement at § 496E [c]). Even if the facts would allow the Court to make the determination that Plaintiff assumed the risk of owning the property, which the Court cannot do based on the record before it, that would only function to reduce the amount of damages Plaintiff is seeking, and not bar the entire action (see Fermenta supra).

On a motion for summary judgment, the movant has the burden to set forth prima facie case before the burden shifts to the non-moving party to create issue of fact (Zuckerman supra). Further, all evidence must be viewed in light most favorable to the non-moving party (Vega supra). By its own submissions, Defendant asserts there are "a myriad of other pieces to the puzzle," which remain to be elucidated, such as what caused the leak at Krisel Terrace; who owned the pipes that allegedly froze; whether the pipes were winterized; whether the lack of winterization had a bearing on the leak; whether the leak was proximate cause of the slide; whether the failure of the retaining wall caused damage to plaintiff's property; the condition of the wall; and not in the least, the ownership of the retaining wall (Mr. Clark testified that he does not know who owned it; Mr. McQuade testified the owner of Kreisel Terrace was absolutely the owner of the retaining wall based on a survey that is not part of the record before the Court). The fact that these issues remain "pieces to the puzzle" does not provide the Court with sufficient information to make a determination as a matter of law with regard to Defendant's lack of liability for the flood and the subsequent destabilization of the soil in the rear of the property. On the contrary, these continue to remain issues of fact which necessarily need to be determined by a jury. When the movant fails to set forth a prima facie case, its motion fails regardless of the sufficiency (or lack thereof) of the opposition (Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]).

On Plaintiff's cross motion for summary judgment, as outlined above, unless the evidence is undisputed, other than a determination regarding Plaintiff's property rights, all other elements of nuisance are issues of fact (see Hitchcock and DelVecchio supra). The Court cannot determine as a matter of law that M & T was a mortgagee in possession which would create a duty to the landowners adjoining the mortgaged property (see Snellinger and Barson supra). The Court cannot determine as a matter of law if the flood which is alleged to have initiated the landslide (an issue which is itself far from undisputed), was intentionally or recklessly caused by Defendant's conduct or omissions. The nature of the alleged nuisance is yet to be determined (see Overocker supra). While the pipes froze in the wall at a point before the shut off in the wall, there was evidence presented that the curb stop, supposedly a responsibility of the City, did not work as expected. There is absolutely no documentary evidence introduced regarding what actions Defendant or its third party tasked with maintaining the property, took, or failed to take, to safeguard or winterize the pipes. Mr. Currie's Affidavit is completely devoid of any relevant information or documentation. Additionally, questions remain regarding whose responsibility is to repair the retaining wall (Defendant, Plaintiff, or the City).

As such, whether M & T was a mortgagee in possession at the time of the leak; the exact act or omission which resulted in the frozen pipes; whether the ensuing flood was due to M & T, Safeguard, or the City's failure; whether the flood and any other preexisting conditions of the soil created the landslide; the ownership of the retaining wall and responsibility therefor; effect of the collapse of the retaining wall and landslide on Plaintiff's property's rear yard, continue to remain questions of fact and the Court cannot render a decision as a matter of law regarding either motion pending before it.

Tangentially, whether or not the Estate of Ralph Federiconi would have any cause of action against Defendant is not a matter that can be determined by the Court on either of the pending motions. There is no action currently brought against M & T by the Estate of Ralph Federiconi, therefore no attempt has been made to join such action with the pending one before the Court. Until/unless such time as such an action is filed and then sought to be joined with the pending action, the Court will not rule on its likelihood of success.

NOW, upon reading the filings identified above; it is hereby

ORDERED that both Defendant and Plaintiff's motions for summary judgment are hereby denied in their entirety for failure to eliminate all triable issues of fact; and it is further

ORDERED that the jury trial date certain previously scheduled by the Court for March, 13, 2023 remains on the calendar.

This Decision and Order constitutes the Order of the Court.

PLEASE TAKE NOTICE that the original Decision and Order is hereby being mailed to counsel for Defendant for filing with the Montgomery County Clerk and service with notice of entry in accordance with the requirements of CPLR § 2220.

DATED: December 22, 2022

ENTER

____________________________________

HON. REBECCA A. SLEZAK

Justice of the Supreme Court

FOOTNOTES

1.   Resolving the anagram that forms the capital letters will indicate an expletive was intended.

2.   Presumably unaware that the 194 Forbes street property had transferred by will to Plaintiff upon his father, Ralph Federiconi's death and probate of his will.

Rebecca A. Slezak, J.