Opinion
11-P-1813
12-12-2012
CHARLES R. CALIRI v. THE COMMUNITY BANK.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 2, 2007, while on commercial property located at 405 Old Wharf Road in Dennisport, the plaintiff, Charles R. Caliri, slipped and fell on a patch of ice, injuring his left leg. At that time, the property was solely owned by LSC Associates, LLC (LSC), whose principal was Robert Raposa. The defendant, The Community Bank (bank), held a mortgage on the property, and LSC was in default but not in foreclosure. The instant case is a premises liability action in which the plaintiff seeks to recover from the owner's mortgagee bank. The motion judge concluded:
Among other things, LSC had not paid premiums for insurance it was required to maintain on the property. In late March, 2007 (after Caliri's fall), the bank force placed insurance on the property, but that covered only the structure on the property and did not provide personal injury liability coverage. On February 19, 2008, the bank, through counsel, sent notice to LSC that LSC was in default under its mortgage and made demand for payment in full of all indebtedness. On March 4, 2008, the bank gave notice as required under G. L. c. 244, § 14, of its intent to foreclose by sale under power of sale for breach of conditions, and on April 8, 2008, the bank made entry for purposes of foreclosing.
The complaint also named LSC as a defendant. A default judgment entered against LSC. That judgment is not at issue in this appeal.
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'There are no facts at hand that would cause this court to deviate from the well-established principle of Massachusetts law that a mortgagee does not owe a duty to maintain mortgaged premises unless and until the mortgagee has taken possession of the premises for the purpose of foreclosure. Negron v. Gordon, 373 Mass. 199, 206-207 (1977), Blackstone Valley National Bank v. Hanson, 15 Mass. App. Ct. 953, 953-954 (1983) and other cases cited in the moving party's brief[.] Skolnick v. East Boston Savings Bank, 307 Mass. 1, 6 (1940), relied upon by the plaintiff does not vary from the above-cited principle; the facts in Skolnick are unique and far removed from the facts at hand.'
Essentially for the reasons stated and authorities cited by the judge, we affirm. The plaintiff's assertion that the bank 'controlled' the property simply is not supported. There is no material evidence that the bank was actively marketing the property, and it had not declared LSC to be in default, nor had it made entry for purposes of foreclosure, until a year after the plaintiff fell. There is no reasonable basis upon which to extend the mortgagee's duty or liability here.
The argument that the judge should have struck the affidavit of Christopher Richards is also without merit. First, the motion was not properly presented as required by Superior Court Rule 9A(b)(4)(i) (2009). Regardless, the portions of the affidavit that the plaintiff challenges were made upon personal knowledge and were within the scope of Richards's duties with the bank.
Judgment affirmed.
By the Court (Kafker, Cohen & Trainor, JJ.),