Opinion
CA 02-02642
October 2, 2003.
Appeal from an order of Supreme Court, Jefferson County (Gilbert, J.), entered February 26, 2002, which granted respondent's motion for summary judgment and dismissed the petition in this tax foreclosure proceeding.
JOHN V. HARTZELL, COUNTY ATTORNEY, WATERTOWN (DAVID J. PAULSEN OF COUNSEL), FOR PETITIONER-APPELLANT.
JOHN A. NASTO, JR., YORKVILLE, FOR RESPONDENT-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Supreme Court, Jefferson County, for further proceedings on the petition in accordance with the following Memorandum:
In appeal Nos. 1 and 2, Supreme Court erred in granting the motions of AmeriCU Credit Union, formerly known as Up State Federal Credit Union (Credit Union), for summary judgment dismissing the petitions in these tax foreclosure proceedings. Initially, we conclude that the court erred in considering the motions, which were the second motions for summary judgment brought by the Credit Union, inasmuch as the evidence submitted in support thereof, i.e., the County of Jefferson's response to the Credit Union's notice to admit, did not constitute newly discovered evidence sufficient to justify multiple summary judgment motions ( cf. Welch Foods v. Wilson, 277 A.D.2d 882, 883). In any event, an issue of fact still remains whether the Credit Union or the federal government owns the building ( see Matter of Foreclosure of 1996 Tax Liens, 288 A.D.2d 956). In appeal No. 1, we therefore reverse the order, deny the motion, reinstate the petition and remit the matter to Supreme Court, Jefferson County, for further proceedings on the petition before a different justice. In appeal No. 2, we therefore modify the order by denying the Credit Union's motion and reinstating the petition, and we remit the matter to Supreme Court, Jefferson County, for further proceedings on the petition before a different justice.