As we have previously observed: "Administrative Code former § D17-12.0 (now § 11-412) creates the presumption that the tax foreclosure action and all proceedings therein and prior thereto, from and including the assessment of all lands affected and all notices required by law, were regular and in accordance with all provisions of law relating thereto. This presumption becomes conclusive two years after the date of the recording of the deed and, in effect, operates as a two-year Statute of Limitations (see, In Rem Tax Foreclosure Action No. 29 Borough of Manhattan, 115 Misc.2d 663, 671)" (Matter of Tax Foreclosure No. 35, 127 A.D.2d 220, 227-228, affd 71 N.Y.2d 863). Accordingly, the instant action, which was commenced more than two years after the recording of the tax foreclosure deed, is clearly untimely on this basis as well.
See, e.g., In Rem Tax Foreclosure # 29, 115 Misc.2d 663, 454 N.Y.S.2d 919 (Sup.Ct.N Y County 1982); Doud v. Huntington Hebrew Congregation, 178 A.D. 748, 165 N.Y.S. 908 (2nd Dept. 1917). In the present case, the complaint was filed more than two years after the deed was recorded in the City's name.
Administrative Code former § D17-12.0 (now § 11-412) creates the presumption that the tax foreclosure action and all proceedings therein and prior thereto, from and including the assessment of all lands affected and all notices required by law, were regular and in accordance with all provisions of law relating thereto. This presumption becomes conclusive two years after the date of the recording of the deed and, in effect, operates as a two-year Statute of Limitations (see, In Rem Tax Foreclosure Action No. 29 Borough of Manhattan, 115 Misc.2d 663, 671).
Therefore, the plaintiff's action, which was not commenced until April 1985, is untimely. The plaintiff's contention that the defendant's alleged agreement to send a third statement tolled the Statute of Limitations is without merit (see, Matter of Cabrini Med. Center v. Axelrod, 107 A.D.2d 965; Matter of Seidner v. Town of Colonie, Bd. of Zoning Appeals, 79 A.D.2d 751, affd 55 N.Y.2d 613; In Rem Tax Foreclosure Action No. 29, 115 Misc.2d 663). Mangano, J.P., Thompson, Brown and Eiber, JJ., concur.
Here, the deed to the City of New York was recorded and the city acquired title on April 25, 1978. It has been held that failure to institute a proceeding within the two-year statutory period forecloses the right to do so. ( In Rem Tax Foreclosure Action No. 19, 115 Misc.2d 663.) Further, movant cannot claim that because of lack of notice he was unable to come forward during the requisite period, as he filed an application for release during that period.
As recently as June 17, 1982 some courts of the State of New York have construed the above provision as excluding all remedies for avoiding a tax deed which has been delivered and recorded save the plenary action (see In Rem Tax Foreclosure Action No. 29, Borough of Manhattan, 115 Misc.2d 663; Matter of City of New York v Realty Apts. Co., 72 A.D.2d 694; Matter of City of New York [ Norend Realty Corp.], 20 A.D.2d 925). In each cited case the court based its holding on the 1951 decision of the Court of Appeals in Town of Somers v Covey ( 2 N.Y.2d 250).