ORDER 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. FACTUAL 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 KCUFUOY1 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
