Opinion
661 CA 18–02305
08-22-2019
In the MATTER OF the FORECLOSURE OF TAX LIENS BY PROCEEDING IN REM PURSUANT TO ARTICLE 11 OF the REAL PROPERTY TAX LAW BY CITY OF UTICA. City of Utica, Petitioner–Appellant; v. Kerry G. Martin, Respondent–Respondent.
WILLIAM M. BORRILL, CORPORATION COUNSEL, UTICA (MERIMA SMAJIC OF COUNSEL), FOR PETITIONER–APPELLANT.
WILLIAM M. BORRILL, CORPORATION COUNSEL, UTICA (MERIMA SMAJIC OF COUNSEL), FOR PETITIONER–APPELLANT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Petitioner commenced this in rem tax foreclosure proceeding pursuant to RPTL article 11 seeking to foreclose delinquent tax liens on property owned by respondent. Petitioner obtained a default judgment of foreclosure, and respondent thereafter moved to vacate the default judgment and for sufficient time to pay the outstanding taxes. Petitioner appeals from an order that, in effect, granted the motion by directing that the judgment of foreclosure be vacated, and title of the property be transferred to respondent, if respondent paid the outstanding taxes by a certain date. We agree with petitioner that Supreme Court erred in granting the motion, and we therefore reverse.
A motion to reopen a default judgment of tax foreclosure "may not be brought later than one month after entry of the judgment" ( RPTL 1131 ; see Matter of County of Wayne [Schenk], 169 A.D.3d 1501, 1502, 93 N.Y.S.3d 770 [4th Dept. 2019] ; Matter of County of Ontario [Helser], 72 A.D.3d 1636, 1637, 900 N.Y.S.2d 524 [4th Dept. 2010] ). Here, respondent's motion was brought outside that time limitation, and there is no basis to conclude that respondent was not required to bring the motion within the applicable time period. Respondent contended in the motion court that his failure to bring a timely motion was excusable because he was denied due process by petitioner's failure to provide him with adequate notice of the pending foreclosure. The record, however, establishes that petitioner afforded respondent due process, which "is satisfied by notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" ( Matter of County of Seneca [Maxim Dev. Group], 151 A.D.3d 1611, 1612, 56 N.Y.S.3d 704 [4th Dept. 2017] [internal quotation marks omitted] ).
In addition, the court erred in determining that it had discretion to grant the motion seeking to vacate the underlying judgment of foreclosure "for sufficient reason and in the interests of substantial justice" ( Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ; see Matter of County of Genesee [Spicola], 125 A.D.3d 1477, 1477, 2 N.Y.S.3d 380 [4th Dept. 2015], lv denied 25 N.Y.3d 904, 2015 WL 2025750 [2015] ). RPTL 1131 "provides, in unambiguous and prohibitory language, that ‘[a] motion to reopen any such default may not be brought later than one month after entry of the judgment’ " ( Schenk, 169 A.D.3d at 1503, 93 N.Y.S.3d 770 ; see Matter of County of Ontario [Duvall], 169 A.D.3d 1508, 1508, 93 N.Y.S.3d 497 [4th Dept. 2019] ), and thus "the exercise of such discretion [is] available to the courts only upon consideration of a timely motion" ( Schenk, 169 A.D.3d at 1502–1503, 93 N.Y.S.3d 770 ; see e.g. Matter of County of Genesee [Butlak], 124 A.D.3d 1330, 1331, 1 N.Y.S.3d 666 [4th Dept. 2015], lv denied 25 N.Y.3d 904, 2015 WL 2025446 [2015] ; Matter of County of Livingston [Mort], 101 A.D.3d 1755, 1755–1756, 957 N.Y.S.2d 794 [4th Dept. 2012], lv denied 20 N.Y.3d 862, 2013 WL 1235498 [2013] ).