Opinion
897 CA 19–00470
09-27-2019
In the MATTER OF the FORECLOSURE OF TAX LIENS FOR the YEAR 2012 (4-YEAR) OR PRIOR BY PROCEEDING IN REM PURSUANT TO ARTICLE 11 OF the REAL PROPERTY TAX LAW OF the STATE OF NEW YORK BY the COUNTY OF OSWEGO. Kevin L. Gardner, in His Official Capacity as Oswego County Treasurer, Petitioner-Respondent; v. Charles R. Trust, Jr., Respondent–Appellant.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (AMANDA M. THOMSON OF COUNSEL), FOR RESPONDENT–APPELLANT. RICHARD C. MITCHELL, COUNTY ATTORNEY, OSWEGO, FOR PETITIONER–RESPONDENT.
AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (AMANDA M. THOMSON OF COUNSEL), FOR RESPONDENT–APPELLANT.
RICHARD C. MITCHELL, COUNTY ATTORNEY, OSWEGO, FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this in rem tax foreclosure proceeding pursuant to RPTL article 11 seeking to foreclose delinquent tax liens on the subject property. Petitioner subsequently sought and obtained a default judgment of foreclosure that was entered in April 2016. In July 2018, respondent moved for, inter alia, vacatur of the judgment. Supreme Court denied the motion, and we affirm. "A motion to reopen a default judgment of tax foreclosure may not be brought later than one month after entry of the judgment" (Matter of County of Herkimer [Moore], 104 A.D.3d 1332, 1333, 961 N.Y.S.2d 715 [4th Dept. 2013] [internal quotation marks omitted]; see RPTL 1131 ). Here, the motion was time-barred inasmuch as it was brought more than one month after entry of the default judgment of foreclosure (see Matter of County of Ontario [Duvall], 169 A.D.3d 1508, 1508, 93 N.Y.S.3d 497 [4th Dept. 2019] ; Moore, 104 A.D.3d at 1333, 961 N.Y.S.2d 715 ).
Respondent contends that the court lacked jurisdiction to issue the default judgment of foreclosure because petitioner failed to comply with the notice requirements of RPTL 1125. We reject that contention (see Duvall, 169 A.D.3d at 1508–1509, 93 N.Y.S.3d 497 ; Moore, 104 A.D.3d at 1333–1334, 961 N.Y.S.2d 715 ). Pursuant to RPTL 1125(1)(a)(i) and (b)(i), petitioner was required to send notice of the foreclosure proceeding by both certified mail and ordinary first class mail to the owner whose interest was a matter of public record on the date the list of delinquent taxes was filed (see Matter of County of Seneca [Maxim Dev. Group], 151 A.D.3d 1611, 1612, 56 N.Y.S.3d 704 [4th Dept. 2017] ). "[T]he failure to substantially comply with the requirement of providing the taxpayer with proper notice constitutes a jurisdictional defect which operates to invalidate the sale or prevent the passage of title" ( id. [internal quotation marks omitted] ). Here, petitioner established that he substantially complied with the notice requirements of RPTL 1125 (see Matter of County of Herkimer [Jones], 34 A.D.3d 1327, 1328, 824 N.Y.S.2d 529 [4th Dept. 2006], lv dismissed 8 N.Y.3d 955, 836 N.Y.S.2d 534, 868 N.E.2d 215 [2007] ). Respondent's contention that the court should have vacated the default judgment of foreclosure pursuant to CPLR 5015(a)(1) and (3) is not preserved for our review (see PNC Bank, N.A. v. Harmonson, 154 A.D.3d 1347, 1348, 61 N.Y.S.3d 787 [4th Dept. 2017] ; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, we conclude that his contention is without merit (see Matter of Foreclosure of Tax Liens, 144 A.D.3d 1033, 1034–1035, 42 N.Y.S.3d 223 [2d Dept. 2016] ). Finally, respondent contends that the default judgment of foreclosure should be vacated in the interests of substantial justice because there is no prejudice to petitioner. We conclude that such relief cannot be granted where, as here, the motion to vacate was untimely (see Matter of County of Wayne [Schenk], 169 A.D.3d 1501, 1502–1503, 93 N.Y.S.3d 770 [4th Dept. 2019] ).