Opinion
May 5, 1986
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Judgment reversed, on the law, without costs or disbursements, petition dismissed on the merits, and sale of the tax lien and tax deed reinstated.
Since the Nassau County Administrative Code is silent as to the notice of a tax lien sale to be given to the property owner (see, Sussman v Hendrickson, 123 Misc.2d 949), Real Property Tax Law § 1002 (4) applies and requires that notice be mailed to the owner or occupant by the County Treasurer (see, Moss Estate v Town of Ossining, 268 N.Y. 114; Matter of Stevens Med. Arts Bldg. v City of Mount Vernon, 72 A.D.2d 177). As a consequence of the general rule that a public official presumptively acts in accordance with his official duties (Matter of Driscoll v Troy Hous. Auth., 6 N.Y.2d 513; Matter of McSpedon v Roberts, 117 Misc.2d 679), there is a presumption at bar that the notice requirement of Real Property Tax Law § 1002 (4) has been complied with. That presumption was not sufficiently rebutted by the petitioners' assertion that they do not recall receiving such notice, particularly where the assertion was made more than three years after the notice was allegedly sent (see, Nassau Ins. Co. v Murray, 46 N.Y.2d 828; Handy v D'Onofrio Bros. Constr. Corp., 59 A.D.2d 254; A. B. Serv. Sta. v State of New York, 50 A.D.2d 973). Thus, Special Term erred in finding that the respondents failed to sustain their burden of establishing that notice of the tax lien sale was given.
Furthermore, although the appellant-respondent Stone admits failure to comply with the Nassau County Administrative Code in that she did not serve the judgment creditor of one of the property owners with notice to redeem the tax lien, the petitioners may not be permitted to assert this noncompliance as it has not been established that they have been prejudiced thereby (see, Matter of Pepsico, Inc. v Bouchard, 102 A.D.2d 1000; Handy v D'Onofrio Bros. Constr. Corp., supra; Margeson v Smith, 41 A.D.2d 896).
In light of the foregoing, we need not reach the issue of whether due process requires notice by mail of a tax lien sale (see, Mennonite Bd. of Missions v Adams, 462 U.S. 791). Mollen, P.J., Weinstein, Rubin and Spatt, JJ., concur.