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TORNHEIM v. FEDERAL HOME LOAN MORTG. CORP.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


September 26, 1997

CHAYA TORNHEIM & CHAIM TORNHEIM, Plaintiffs, against FEDERAL HOME LOAN MORTGAGE CORP., SOURCE ONE MORTGAGE SERVICES CORP., and FIVE BROTHERS MORTGAGE COMPANY SERVICES and SECURING, INC., Defendants. FIVE BROTHERS MORTGAGE COMPANY SERVICES and SECURING, INC., Defendant and Third-Party Plaintiff, - against - CHRIS KERVANDJIAN, MIKE PIORK, and NORTHEAST PROPERTY INSPECTOR, Third-Party Defendants.

The opinion of the court was delivered by: LEISURE

MEMORANDUM ORDER

 Leisure, District Judge :

 Plaintiffs, pro se, brought this action alleging seven separate claims: (1) trespass, (2) infliction of emotional distress, (3) deprivation of the reasonable value of the use of their home during the period of their alleged ouster, plus treble damages, (4) conversion of plaintiffs' personal property, (5) invasion of privacy, and (6) and (7) violations of the Fair Debt Collection Practices Act. The Court referred this matter to the Honorable Andrew J. Peck, United States Magistrate Judge, for general pretrial supervision and the handling of defendant Federal Home Loan Mortgage Corp.'s ("FHLMC") and defendant Source One Mortgage Services Corp.'s ("Source One") motion for summary judgment.

 On June 16, 1997, Judge Peck issued a Report and Recommendation (the "Report") advising this Court to grant the defendants' motion for summary judgment but to deny their request for sanctions and attorneys' fees. Judge Peck sua sponte recommended granting summary judgment in favor of defendant Five Brothers Mortgage Company Services and Securing, Inc. ("Five Brothers"), which also would moot Five Brothers' claim against third-party defendants.

 Plaintiffs have submitted objections to the Report. The Court has reviewed Judge Peck's Report and made a de novo determination, as required by 28 U.S.C. § 636 (b)(1), that the Report's conclusions are legally correct and proper. See United States v. Raddatz, 447 U.S. 667, 676, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980) ("[Section 636(b)(1)] permit[s] whatever reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed findings and recommendations.") In addition, the Court has considered plaintiffs' objections and finds them to be without merit. The Court therefore adopts the Report, subject to the clarifications offered infra.

 As the relevant facts of the instant case and the appropriate standard for summary judgment are set forth at length in the Report, the Court need not present them here. The Court notes that it grants summary judgment on plaintiffs' trespass claim not because plaintiffs are estopped from bringing the trespass claim, as the Report advised, but because they are unable to demonstrate a genuine issue of material fact as to a necessary element of the cause of action.

 Under New York law, which indisputably applies to the instant case:

 

Trespass is the interference with a person's right to possession of real property either by an unlawful act or by a lawful act performed in an unlawful manner. The act must be intentional and the damages a direct consequence of the defendant's act.

 Annutto v. Town of Herkimer, 56 Misc. 2d 186, 189, 288 N.Y.S.2d 79, 84 (N.Y.Sup. 1968)(citing 87 C.J.S. Trespass § 4). Plaintiffs have failed to satisfy their burden of showing that there exists a genuine issue of material fact as to the element of damages caused as a result of the alleged trespass. Plaintiffs not only have offered no evidence showing damages caused by the alleged trespass to their real property, but affirmatively admit, "We are not seeking to recover damages done to the house." Plaintiffs' Declaration in Opposition to Defendants' Motion for Summary Judgment, at P6. As plaintiffs offer no evidence to satisfy a necessary element of their trespass claim, it is appropriate to grant summary judgment on this claim in favor of defendants.

 The Court also notes that it considers plaintiffs' claim for invasion of privacy be considered time-barred, as recommended by Magistrate Judge Peck. In a footnote, the Report states, "The Tornheims' bankruptcy filing did not toll the statute of limitations for purposes of actions brought by the Tornheims, but rather only for actions brought against them." See Report at 10, fn. 5. However, pursuant to the § 108(a) of the Bankruptcy Code:

 

If applicable nonbankruptcy law . . . fixes a period within which the debtor may commence an action, and such period has not expired before the date of the petition, the trustee may commence such action only before the later of--

 

(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or

 

(2) two years after the order for relief.

 11 U.S.C. § 108(a).

 The Report notes that plaintiffs' claim for invasion of privacy must be construed as a claim under New York Civil Rights Law § 51, and that the applicable limitations period is one year. See Report at 9-10 (citing NYCPLR § 215(3).) The latest alleged break-in having occurred in August of 1993, see Report at 10, plaintiffs normally would have had until August of 1994 to file a complaint alleging invasion of privacy. See CPLR § 215(3). However, the Tornheims' filing for voluntary bankruptcy protection pursuant to Chapter 11 of the Bankruptcy Code tolled the statute of limitations. See 11 U.S.C. § 108(a). Since their petition was filed on January 4, 1994, see Report at 4, plaintiffs had until January 4, 1996, to file their complaint alleging invasion of privacy. See 11 U.S.C. § 108(a). *fn1" As their initial Complaint in the instant case was not filed until July 15, 1996, plaintiffs' claim for invasion of privacy is time-barred.

 CONCLUSION

 For the reasons stated in the Report, plaintiffs' claims against the defendants and third-party plaintiffs' claims against third-party defendants are HEREBY DISMISSED.

 SO ORDERED.

 New York, New York

 September 26 1997

 Peter K. Leisure

 U.S.D.J


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