Philip v. Deutsche Bank Nat'l Trust Co.
| Decision Date | 30 September 2014 |
| Docket Number | 11 Civ. 8960 (PGG) |
| Parties | JACOB PHILIP, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, As trustee for Pooling and Servicing Agreement Dated As of November 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-WM3, Defendant. |
| Court | U.S. District Court — Southern District of New York |
This is a personal injury negligence action involving a house fire. On March 26, 2011, Plaintiff Jacob Philip was injured when an electrical hot plate being used as a heater caught fire at 171-50 107th Avenue in Queens, New York (the "Property"). Plaintiff brings this action against Defendant Deutsche Bank National Trust Company ("Deutsche Bank"), the titleholder of the Property, alleging that it was negligent for "fail[ing] to monitor who was residing at the subject premises, permitting the use of a cooking plate as a heating device[,] failing to keep the subject premises hazard free and safe[,] and violat[ing] New York State and New York City Building Codes." (Notice of Removal (Dkt. No. 1), Ex. D (Verified Bill of Particulars) ¶ 17) Defendant has moved for summary judgment on all claims. For the reasons stated below, Defendant's motion will be granted.
On September 17, 2010, Defendant Deutsche Bank took title to the Property - a single family residence located in a residential neighborhood of Queens, New York - by a Referee's Deed following foreclosure. (Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶¶ 1-2)2
Defendant's loan servicer, Ocwen Loan Servicing ("Ocwen"), contracted Altisource Portfolio Solutions ("Altisource") to maintain and manage the Property.3 (December 19, 2013 David Strathy Deposition Transcript ("Strathy Dep. Tr.") (Dkt. No. 71) 8:13-25, 9:5-10) According to Altisource employee David Strathy, Altisource provides "property preservation services" to loan servicers like Ocwen, which entails "ensur[ing] that [the properties] are kept up to code, [maintaining them] in good condition[,] and [ ] sell[ing] the[m]." (Id. at 7:6-16)
In its role as property manager, Altisource hired third-party vendors who "performed property inspections on the condition of the [P]roperty" and other general management responsibilities. (Id. at 7:12-19, 11:18-12:11) On February 7, 2011, Ocwen entered into a "cash-for-keys" agreement with Calmer Clarke, a tenant living at the Property. (Declaration of Sara L. Markert in Support of Defendant's Motion for Summary Judgment ("Markert Decl.") (Dkt. No. 55), Ex. M: Occupancy Termination Agreement) "Cash-for-keys" is a transaction whereby the owner of a Real Estate Owned property - i.e., a foreclosed property owned by a financial institution after a failed auction - pays a tenant to vacate the property. (Strathy Dep. Tr. (Dkt. No. 71) 22:2-10; 24:25-25:4) Pursuant to the "cash-for-keys" agreement here, Defendant paid Clarke - the only tenant living in the Property - $5,000 to vacate the premises. 4 In exchange, Clarkeagreed to vacate the Property and surrender possession to the Defendant. (Def. R. 56.1 Stmt. (Dkt. No. 52) ¶ 3; Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 3) Pursuant to the terms of the agreement, all personal property was removed from the premises and the Property was in "broom clean" condition when Clarke vacated on March 11, 2011.
That same day, Altisource's vendor - Gillo Realty - changed the lock on the front door of the Property, installed a digital lock box, and boarded up and nailed shut the rear door of the Property. (Strathy Dep. Tr. (Dkt. No. 71) 39:15-40:2; 48:2-9) Date stamped photographs from March 11, 2011, show several empty rooms as well as before and after images of the house's front door and newly installed electronic lock. (Market Deck (Dkt. No. 55), Ex. N: Cash For Keys Fulfillment Form and attached photographs; see also Strathy Dep. Tr. (Dkt. No. 71) 43-45, 48-49) The first floor windows were also protected by bars. see also Sept. 12, 2012 Jacob Philip Deposition Transcript (" ") (Dkt. No. 72) 77:4-6)5
Two weeks later - on March 25, 2011 - Plaintiff was brought to the Property between 8:30 p.m. and 9:00 p.m. by a man named Bipu Mohammed. (Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 7) Mohammed used a key to gain entry to the premises. According to Plaintiff, he had spoken with Mohammed earlier that week - on March 22, 2011 - about renting a room at the Property. (Pltf. Dep. Tr. (Dkt. No. 72) 69:8-13)
While it is undisputed that Defendant was the owner of the Property on March 25, 2011, Plaintiff states that he believed at the time that another man named Mohammed - not Bipu Mohammed - owned the Property. (Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 14)6 It is undisputed, however, that no one named Bipu Mohammed or Mohammed was employed or was otherwise engaged by or on behalf of Defendant or its agents in relation to the Property. (Def. R. 56.1 Stmt. (Dkt. No. 52) ¶ 22 (citing Dougherty Decl. (Dkt. No. 54) ¶ 8))7 Furthermore, a privateinvestigator's background check on Bipu Mohammed on October 25, 2012, yielded no address information for such a person. (Markert Deck (Dkt. No. 55), Ex. C: Investigative Report) Investigators also interviewed residents on the block containing the Property, but none reported knowing anyone named Bipu Mohammed. (Id. at 2-3)
Plaintiff concedes that he did not enter into a written lease agreement for the Property (Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 13), nor did he pay any money, rent or other valuable consideration to stay at the Property. (Def. R. 56.1 Stmt. (Dkt. No. 52) ¶ 12; Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 12)8
At the time Plaintiff entered the premises, the first floor windows of the Property had bars on them. (Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 8) The Property had working electricity, lights, and hot water. (Id. ¶¶ 9-10) Plaintiff testified that the heat was turned off, however, due to construction at the Property. (Id. ¶ 11) Plaintiff testified that Bipu Mohammed said that it would be turned on the following day.9 Plaintiff further testified that another man - whose name he does not recall but whom Plaintiff believes is Bangladeshi - was living at the Property when he arrived.10 (Pltf. Dep. Tr. (Dkt. No. 72) 65:20-66:20) Plaintiff and the man said "hello" but did not engage in any further conversation. (Id.)
Plaintiff did not bring any furniture, clothing, or appliances to the Property, although he had a "toothbrush, shaving stuff, [a] razor . . . [and] a towel" which he had purchased from the "subway store." (Id. at 91:16-92:13; 92:23-93:15) Plaintiff maintains that he intended to move his belongings into the Property the following day "if [he] decided to rent the room." (Pltf. Aff. (Dkt. No. 66) ¶ 15)
Although Plaintiff had brought no clothing or furniture with him, he decided to sleep at the Property that night - March 25, 2011. (Pltf. Dep. Tr. (Dkt. No. 72) 91:16-24; see Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 17) Plaintiff slept on a bare floor. (Pltf. Dep. Tr. (Dkt. No. 72) 97:5-14)
That evening - during the early morning hours of March 26, 2011 - a fire started at the Property. (Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 15) The outside temperature at the time of the fire was approximately thirty degrees Fahrenheit. (Markert Decl. (Dkt. No. 55), Ex. E: Report of Plaintif's Fire Expert William Kregler at 2) The cause of the fire was a hot plate that was being used as a heating device. (Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶¶ 16, 31) Plaintiff awoke when he smelled smoke. (Id. ¶ 17) Plaintiff determined that the fire was coming from the Bangladeshi man's room. (Pltf. Dep. Tr. (Dkt. No. 72) 122:7-13, 124:12-21) Plaintiff entered the room where the other man was sleeping to warn him about the fire. (Id. at 122:14-16, 124:7-21)
Plaintiff then attempted to extinguish the fire, making 10 to 20 trips to the bathroom to fill a bucket with water so he could pour it on the fire. (Id. at 122:19-123:1, 124:23-24, 132:1-19; Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 19)11 While Plaintiff was going back and forth between the bathroom and the fire, Plaintiff lost consciousness due to smoke inhalation. As a consequence, Plaintiff suffered severe burns. (Markert Deck (Dkt. No. 55), Ex. G (Simpson Medical Report))
On May 18, 2011, Defendant sold the Property to Range Development, Inc. (Markert Deck (Dkt. No. 55), Ex. K: Property Deed) During the time that Defendant owned the Property, there were no reported incidents of trespass. (Def. R. 56.1 Stmt. (Dkt. No. 52) ¶ 20; Pltf. R. 56.1 Resp. (Dkt. No. 69) ¶ 20)12
Plaintiff filed this action on September 22, 2011, in Supreme Court of the State of New York, New York County. On December 7, 2011, Defendant removed this action to federal court on the basis of diversity of citizenship. (Id. ¶¶ 8-10; see 28 U.S.C. § 1441(a) and (b)) Plaintiff moved to remand this action to state court (Dkt. No. 7), but Plaintiff's remand motion was denied on June 19, 2012. (Dkt. No. 13) Defendant now moves for summary judgment. (Dkt. No. 50)
I. LEGAL STANDARD
Summary judgment is warranted where the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could...
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