Opinion
Index No. 030396/2020
01-04-2023
Wilmington Savings Fund Society FSB-TR, Plaintiffs, v. Iris Rosado et al., Defendants.
Thomas P. Zugibe, J.
The following e-filed documents, listed by NYSCEF document number: 116, 117, 118, 119, 120, 121, 122, 123, 134, 125, 126 were read on this motion demanding payment of common charges pursuant to Real Property Actions and Proceedings Law ("RPAPL") § 1308.
Plaintiff commenced this action in January 2020 (see NYSCEF No. 1 [summons and complaint]) to foreclose a mortgage (see NYSCEF No. 3 [mortgage]) executed by Iris Rosado ("defendant") on the premises of 137 Buckingham Court, Unit 137, Pomona, New York 10970 ("the premises"). The premises were foreclosed, a notice of sale was filed in September 2022 advising that a sale would be conducted in November 2022 (NYSCEF No. 115 [notice of sale]) the sale occurred as scheduled. (See NYSCEF No. 125 at 2 ¶10 [plaintiff's affirmation in opposition].)
Defendant Board of Managers of Sumerset Condominiums now seeks payment of common charges pursuant to RPAPL § 1308. (See NYSCEF No. 116 [defendants notice of motion].) Plaintiff retorts that the statute does not provide a private right of action and defendant lacks standing to bring suit under it. (See NYSCEF No. 125 at 3 ¶11 [plaintiff's affirmation in opposition].)
The purpose of RPAPL § 1308 is to impose on mortgagees and their servicing agents a duty to inspect, secure, and maintain vacant or abandoned properties. (See New York State Assembly memorandum in support of Bill A06932A.) The statute applies to "vacant and abandoned one to four family residential real property" and requires that a "servicer authorized to accept payment of the loan... complete an exterior inspection of the subject property to determine occupancy." (RPAPL § 1308(1).) If there exists a "reasonable basis to believe" the property "is vacant and abandoned", the servicer must "secure and maintain" it. (RPAPL § 1308(2).)
Defendant's claims stem from RPAPL §§ 1308(4)(g) and (k) which impose an obligation to "remove and remediate... health and safety issues" and if not, to pay "homeowners' association, condominium common charges... as needed to maintain the property." Defendant asserts that, contrary to the statute, after plaintiff obtained possession of the premises it was left it in "disrepair" (NYSCEF No. 118 at 2 ¶ 7 [defendant's affidavit in support]) and now common charges are owed to secure and maintain it.
The legislative history behind the statute in question is clear that there exists no private cause of action to bring suit under it. The court in Snellinger, taking an in-depth review of this legislative history, found that it stated in unambiguous terms that it creates no private cause of action, and enforcement is instead "limited to the superintendent of financial services and the municipality in which the [p]roperty is located." (Snelliner v Federal National Mortgage Association, 2021 WL 1063344 at *4 [SDNY 2021] [noting that the legislative purpose is to "help community residents and the municipalities throughout [New York] State better address the growing [problem] [sic] of vacant and residential properties"].) Ultimately, the court held plaintiff mortgagor did not have a private cause of action against defendant mortgagees under RPAPL § 1308. (See id. at *5 [noting that plaintiff failed to "provide any instances where a court found a private right of action under [RPAPL] § 1308].)
https://assembly.state.ny.us/leg/?default_fld= & leg_video= & bn=A06932 & term=2015 & Summary=Y & Memo=Y
The court specifically stated that § 1308 does not "create[ ] a private right of action." (Id. [noting that the bill did instead create a means of redressability, not through litigation, but a "toll-free hotline" that can be used to "report suspected vacant and abandoned propert[y]"].)
Similarly, the court in Cretcher reiterated that the "New York State Department of Financial Services and the municipality in which a residential property is located have the right to enforce the obligations of [RPAPL § 1308].)" (Cretcher v U.S. Bank N.A., 2021 WL 1062057 at *3 [EDNY 2021] [noting that the purpose of the statute is to prevent "neighborhood-wide blight rather than provide recourse for individual[s]... and to provide the Department of Financial Services a mechanism to ensure compliance].)
This Court therefore determines that the moving defendant has no standing to bring a claim under RPAPL § 1308. In light of this determination, the court declines to opine on defendant's other claims. Thus, for the foregoing reasons, it is hereby
ORDERED that defendant's motion is DENIED in its entirety with prejudice.