Opinion
No. 59784.
08-17-2017
In the Matter of the FORECLOSURE OF TAX LIENS BY PROCEEDINGS IN REM PURSUANT TO ARTICLE ELEVEN OF THE REAL PROPERTY LAW BY THE CITY OF GLENS FALLS.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (William C. Firth, of counsel), for Petitioner, City of Glens Falls. Livingston T. Coulter, Schuylerville, for Respondent, The C. Mett Group Trust.
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (William C. Firth, of counsel), for Petitioner, City of Glens Falls.
Livingston T. Coulter, Schuylerville, for Respondent, The C. Mett Group Trust.
ROBERT J. MULLER, J.
In December 2014, petitioner City of Glens Falls (hereinafter the City) commenced this RPTL article 11 proceeding. Certain commercial premises located at 222 Maple Street in the City of Glens Falls, Warren County were among the several properties sought to be foreclosed upon. Respondent C–Mett Group (hereinafter C–Mett)—the owner of the premises—was served with notice of the proceeding and failed to appear. As such, by Order dated May 1, 2015 and entered on May 4, 2015, the City was granted a default judgment as against C–Mett. A deed transferring the subject premises to the City was thereafter recorded on May 13, 2015. Presently before the Court is C–Mett's motion to vacate the default judgment issued against it.'
"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 Foreclosure of Tax Liens by County of Clinton [Tupaz], 17 AD3d 914, 915 [2005], quoting RPTL 1131 ; accord Matter of County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d 1206, 1207 [2014] ; see Matter of County of Sullivan [Dunne–Town of Bethel], 111 AD3d 1232, 1234 [2013] ). This statute of limitations applies even where the property owner asserts that it was not notified of the foreclosure proceeding (see Matter of County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d at 1207 ; see Matter of County of Sullivan [Dunne–Town of Bethel], 111 AD3d at 1234 ; Matter of County of Herkimer [Moore], 104 AD3d 1332, 1333 [2013] ). The failure to provide the property owner with notice of entry of the default judgment of foreclosure similarly "does not affect or extend the statutory limitations period for motions to reopen default judgments under RPTL 1131" ( Matter of County of Clinton[Bouchard], 29 AD3d 79, 82 [2006] ; see Matter of Tax Liens by County of Clinton [Fortunatus], 299 A.D.2d 774, 774–775 [2002], lvs dismissed 99 N.Y.2d 610 [2003], 100 N.Y.2d 574 [2003] ).
Here, more than two years have passed since entry of the Order granting a default judgment. C–Mett is not entitled to the requested relief. Indeed, the statute of limitations set forth in RPTL 1131 applies notwithstanding C–Mett's contentions that it was neither notified of the foreclosure proceeding nor served with a copy of the foreclosure proceeding nor served with a copy of the Order granting a default judgment.
C–Mett's contention that it was not notified of the proceeding is without merit in any event, as the record contains a copy of the affidavit of service.
Therefore, based upon the foregoing analysis and upon review of the papers as enumerated hereinafter; the Order To Show Cause dated June 1, 2017, the supporting Affirmation of Livingston T. Coulter, Esq., dated May 31, 2017 together with Exhibits "1" through "6", the supporting Affidavit of Theodore P. Zoli, sworn to May 20, 2017 together with Exhibits "1" through "9", the supporting Memorandums of Law dated May 31, 2017 and August 15, 2017 together with Exhibits "1" and "2", and the opposing Affidavit of William C. Firth, Esq. sworn to June 21, 2017 it is
ORDERED that the Order to Show Cause to vacate the default judgment issued against C–Mett is denied, in its entirety, and it is further,
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Order to Show Cause dated June 1, 2017 and all papers as enumerated herein. Counsel for the City of Glens Falls is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.