United States District Court, E.D. New York
MARGO K. BRODIE, District Judge.
On April 17, 2012, plaintiff Corey Davis ("Davis") commenced this action against defendants Joy Brown ("Brown") and PODS Enterprises, Inc. (s/h/a PODS Inc., ) ("PODS"), asserting claims, inter alia, seeking to recover damages from a lien sale by PODS of property stored by Brown in a self-service storage container pursuant to a rental agreement between PODS and Brown. Pending before the Court are: (1) PODS' motion for summary judgment; (2) Brown's motion for leave to file an amended cross complaint; (3) Brown's cross-motion for summary judgment on the proposed amended cross complaint; (4) Davis's motion for leave to file a second amended complaint; and (5) Davis's cross-motion for summary judgment on the proposed second amended complaint. For the reasons set forth below, PODS' motion for summary judgment is granted in part and denied in part, Brown's and Davis's motions to amend are denied, and Brown's and Davis's cross-motions for summary judgment are denied as moot.
A. Factual Background
PODS operates a self-storage business that provides containers to its customers for selfstorage purposes. (PODS' 56.1 Stmt. ¶ 1). Customers can place property into the container, secure the container with the customer's own lock, and request that PODS retrieve the container and transport it to a PODS facility for storage. ( Id. ¶¶ 2-3).
Davis is currently incarcerated at the United States Penitentiary, Tuscan. (Kunkin Decl., Ex. B ("Davis Depo."), at 6). Davis and Brown were in an exclusive relationship from 1994 through the early 2000s, and have a son together. ( Id. at 8, 89).
Following Davis's arrest on December 27, 2006, Brown contacted PODS to arrange for the delivery of a storage container unit to "Davis's mothers [sic] house [located at 143-12 184th Street, Springfield Gardens, New York 11432] where he was residing at the time" (the "Springfield Residence"). (Amended Complaint ("Am. Compl.") [Docket Entry No. 6] ¶¶ 5-6; Kunkin Decl., Ex. A ("Brown Depo."), at 28-29). Davis's personal property needed to be removed from the Springfield Residence so that Davis's mother could rent out the space to a new tenant. (Davis Depo., at 13-15; Kunkin Decl., Ex. G ("Chester Davis Depo."), at 12-13). Brown packed up some of Davis's belongings. (Brown Depo., at 38; Chester Davis Depo., at 37).
On January 9, 2007, PODS delivered POD number 859B48 (the "Container") to the Springfield Residence and placed the Container in front of the driveway in the street. (Brown Depo., at 54-55; Brown Answer [Docket Entry No. 35], ¶ 2; Am. Compl. ¶ 7). That same day, Brown signed a rental agreement (the "Rental Agreement") that named PODS as lessor and Brown as tenant of the Container. (Ogburn Decl., Ex. A; Brown Depo., at 13-15). According to the terms of the Rental Agreement, Brown was permitted to use the Container solely to store her own personal property. (Rental Agreement, ¶ 4). The Rental Agreement also required Brown to insure the property stored in the Container if the aggregate value exceeded five thousand dollars ($5, 000.00). ( Id. ). Brown has submitted no proof that she obtained any such insurance.
On or about January 10, 2007, Davis's father, Chester Davis, arrived at the Springfield Residence with movers, who wrapped furniture and brought all of Davis's belongings (the "subject property") to the front lawn. (Brown Answer ¶ 3; Brown Depo., at 35-39, 57-58). Brown arrived at the Springfield Residence later that day and observed the loading of the Container; upon completion of the loading, the Container was locked. (Brown Depo., at 35, 39, 53-59; Brown Answer ¶ 4; Chester Davis Depo., at 39-41). PODS picked up the Container and brought it to 50 Oser Avenue, Hauppauge, New York 11788 for storage. (PODS' 56.1 Stmt ¶ 6; Am. Compl. ¶ 8). Brown did not compile an inventory of the items placed in the PODS Container nor did she photograph the subject property. (Brown Depo., at 36-37). Davis testified that he "didn't do anything" in connection with his property after Brown notified him in early 2007 that she had stored the subject property in the Container because "[he] trusted her to take care of it." (Davis Depo., at 11).
As early as August 2008, Brown stopped making the required monthly payments for the Container on time and in full, and the account was in arrears through most of 2008. (PODS' 56.1 Stmt. ¶ 16; Brown Depo., at 61-72). PODS mailed invoices and past due notices to Brown at 145 Clermont Avenue, Hempstead, New York 11550, which reflected the outstanding balance on the account as well as the newly incurred monthly charges. (Ogburn Decl., Exs. E, F). While Brown initially testified that she stopped making payments because she did not receive the invoices, she later admitted that she received the invoices and past due notices for August 2008 through January 2009, but had no explanation for her failure to make the required payments. (Brown Depo., at 63-73, 79-80; PODS' 56.1 Stmt. ¶¶ 17-18). Specifically, Brown admits that she received an invoice and past due notice, both dated January 26, 2009, which indicated an outstanding account balance of four hundred fourteen dollars and fifty-six cents ($414.56). (Brown Depo., at 70, 79).
According to Davis, Brown never notified him that the account was in arrears. (Davis Depo., at 21). Brown testified that she did not recall whether she sent the invoices and past due notices to Davis's family or alerted them that the account was in arrears. (Brown Depo., at 78). Chester Davis testified that he had never seen the invoices or past due notices prior to his deposition. (Chester Davis Depo., 48). Chester Davis further testified that he would have made the payments if Brown had contacted him about her inability to make the required payments, but Brown did not do so. ( Id. at 55-56).
On January 26, 2009, PODS sent another letter to Brown at the same address, which notified Brown that if she failed to pay the full amount of the outstanding balance by February 8, 2009, the contents stored in the Container would be sold at an auction on February 24, 2009 ("Notice of Auction"). (Ogburn Decl., Ex. C). Although Brown admits that she received the invoice and past due notice dated January 26, 2009, Brown contends that she never received the Notice of Auction. (Brown Depo., at 75, 83). On February 24, 2009, PODS conducted a lien sale of the property stored in the Container (the "Lien Sale"). (PODS Memorandum in Support of Summary Judgment ("PODS' Memo") [Docket Entry No. 47-19], at 1; Notice of Auction).
On or about April 2010, Davis learned from his sister that PODS had sold his property stored in the Container. (Am. Compl. ¶ 12). While Davis alleges that it was Brown who informed his sister about the Lien Sale, ( id. ), Brown contends that "Davis's sister found out" and "she, actually, informed [Brown]." (Brown Depo., at 91). According to Davis, at the time his sister told him about the Lien Sale, Brown had not informed him that his property had been sold. (Am. Compl. ¶ 14). Brown testified that she did not tell Davis about the Lien Sale because she thought Davis's sister had told him. (Brown Depo., at 99). While Brown does not recall whether she attempted to inform Chester Davis that the account was in arrears, Brown admits that she did not tell Chester Davis about the Lien Sale. ( Id. at 109).
B. Procedural History
On April 17, 2012, Davis commenced this action against defendants Brown and PODS, seeking to recover damages from the Lien Sale. [Docket Entry No. 1]. On June 22, 2012, Davis filed an amended complaint ("Amended Complaint"), asserting the following claims against PODS: (i) negligence; (ii) intentional negligence; (iii) breach of contract; and (iv) conversion. [Docket Entry No. 6]. The Amended Complaint also asserts the following claims against Brown: (i) negligence; (ii) intentional negligence; and (iii) violation of bailment. On August 27, 2012, PODS filed an answer to the Amended Complaint. [Docket Entry No. 9]. On May 31, 2013, Brown filed the Brown Answer and the Cross ...