Opinion
524648
04-19-2018
In the MATTER OF the FORECLOSURE OF TAX LIENS BY COUNTY OF BROOME. County of Broome, Respondent; v. Alpine Endicott Realty, LLC, Appellant.
Law Office of Kent & McBride, PC, Middletown (Christopher D. Devanny of counsel), for appellant. Robert G. Behnke, County Attorney, Binghamton, for County of Broome, respondent. Pope, Schrader & Pope, LLP, Binghamton (Kurt Schrader of counsel), for Town of Union.
Law Office of Kent & McBride, PC, Middletown (Christopher D. Devanny of counsel), for appellant.
Robert G. Behnke, County Attorney, Binghamton, for County of Broome, respondent.
Pope, Schrader & Pope, LLP, Binghamton (Kurt Schrader of counsel), for Town of Union.
Before: Garry, P.J., Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
Aarons, J.Appeal from an order of the County Court of Broome County (Cawley Jr., J.), entered October 24, 2016, which, in a proceeding pursuant to RPTL article 11, denied respondent's motion to vacate a default judgment.
Petitioner commenced this RPTL article 11 tax foreclosure proceeding against respondent based upon respondent's failure to pay real property taxes due with respect to real property in Broome County. In March 2015, the parties entered into an installment agreement whereby respondent would repay the delinquent taxes due. In May 2015, respondent failed to pay taxes due, as well as those taxes due under the installment agreement. Petitioner thereafter moved for summary judgment, which respondent did not oppose. In May 2016, County Court granted petitioner's motion and awarded possession and title of the subject property to petitioner. Respondent subsequently moved to vacate the default judgment entered against it. In October 2016, County Court denied the motion. Respondent appeals. We affirm.
To vacate its default, it was incumbent upon respondent to demonstrate a reasonable excuse and a meritorious defense (see Matter of County of Albany [Bowles] , 91 A.D.3d 1132, 1133, 936 N.Y.S.2d 763 [2012] ; Matter of Clinton County [Miner] , 39 A.D.3d 1015, 1016, 833 N.Y.S.2d 715 [2007] ). Assuming, without deciding, that respondent had a reasonable excuse, respondent's assertion that, in April 2016, it mailed petitioner a check representing the full amount of delinquent taxes due does not constitute a meritorious defense to foreclosure. Even if it did, respondent failed to tender any evidence to substantiate its claim that it mailed the check. Moreover, the check was never received by petitioner, and respondent recognizes that funds were not drawn to satisfy the check. In view of the foregoing, County Court properly denied respondent's motion to vacate the default judgment (see Matter of County of Otsego [Opalecky] , 103 A.D.3d 1020, 1021, 959 N.Y.S.2d 769 [2013] ; Matter of County of Sullivan [Yong Tuk Yun] , 82 A.D.3d 1560, 1562 [2011], 920 N.Y.S.2d 450 ). Respondent's remaining contentions have been examined and found to be lacking in merit.
ORDERED that the order is affirmed, without costs.
Garry, P.J., Devine and Mulvey, JJ., concur.