Opinion
November 24, 1958
In an action to establish the regularity of tax sales and the title to certain parcels of real property resulting therefrom (Nassau County Administrative Code, §§ 5-57.1, 5-57.2; L. 1939, chs. 272, 704), the plaintiff appeals from so much of an order of the County Court, Nassau County, as granted the motion of the defendant Von Gerichten for summary judgment and permitted him to redeem parcel 3, and said defendant appeals from so much of that order as denied the motion with respect to parcels 1, 4, 5 and 6. Order modified by striking therefrom the first and second ordering paragraphs and by striking from the third ordering paragraph the word "other". As so modified, order affirmed, with $10 costs and disbursements to respondent-appellant. In our opinion summary judgment is not a remedy available in this type of action, which does not fall into any of the stated classifications wherein such motion may be made (Rules Civ. Prac., rule 113). This action is one essentially brought for the validation of tax deeds ( Swidler v. Knocklong Corp., 305 N.Y. 527, 537). In any event issues with respect to parcel 3 survived for trial, in view of the facts that conflict as to respondent-appellant's title was raised by the pleadings, that the appellant-respondent submitted no positive proof of his ownership of this parcel, and that the record is barren of the manner in which the redemption figure of $107.73 was arrived at (cf. Knocklong Corp. v. Long Is. State Park Comm., 284 App. Div. 973). The learned County Judge properly ruled that appellant-respondent had no cognizable right to redeem parcels 1, 4, 5 and 6 because of the discontinuance of this action as to these parcels by an order of the court, entered prior to service of process upon appellant-respondent and prior to his voluntary appearance and service of an answer ( Nosrep Corp. v. Clinton Securities Corp., 193 App. Div. 878; Chapman v. Wolf, 89 App. Div. 563, 565). Wenzel, Acting P.J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.