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Cretcher v. U.S. Bank N.A.

Water Leak Claims Sustain Trespass, But Bank Did Not Breach Duty Under Negligence Theory

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MEMORANDUM AND ORDER Plaintiffs Lilia Cretcher and Douglas Horton assert claims against Defendant U.S. Bank for negligence, trespass, and private nuisance under New York state law. Defendant moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint in its entirety. BACKGROUND1 Plaintiffs reside at 74 Cedar St., Brooklyn, New York, 11221 (“74 Cedar”), a single-family residential property they purchased in November of 2016. (Compl. 6, ECF No. 1.) 74 Cedar shares a central inner wall with 72 Cedar Street (“72 Cedar”). (Id. 15.) Together, the two single-family homes form a single freestanding structure. (Id.) Plaintiffs allege that 72 Cedar has been legally abandoned and in considerable disrepair since at least November 2016 and remains in the same “disintegrating condition” today. (Id. 26.) The legal owner of 72 Cedar is deceased, 72 Cedar has been vacant since at least November 2016, and Defendant is the mortgagee of 72 Cedar. (Id.

17-25.) Plaintiffs allege Defendant violated New York Real Property Actions and Proceedings Law (“RPAPL”) §1308, which requires mortgagees to maintain “vacant and abandoned one-to-four-family residential real property,” and makes them liable for damages caused by their failure to do so. (Id.

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