Pompe v. City of Yonkers

9 Citing cases

  1. In re Martyak

    432 B.R. 25 (Bankr. N.D.N.Y. 2010)   Cited 26 times
    Stating that “[s]ince Rooker–Feldman does not apply when a federal statute specifically authorizes a lower federal court to vitiate a state court judgment, the doctrine is inapplicable to Debtor's avoidance action asserted under Code section 548”

    Id; see also Pompe v. City of Yonkers, 578 N.Y.S.2d 585, 588 (N.Y. App. Div. 1992).

  2. Matter of City of Troy v. Garner

    257 A.D.2d 711 (N.Y. App. Div. 1999)   Cited 3 times

    Significantly, petitioner's "Department of [F]inance", which includes, among other bureaus, the bureau of audits and accounts, treasury, and assessments (see, Troy City Code §§ 4.00, 4.02), is run by the City Comptroller, who supervises both the City Treasurer and City Assessor (see, Troy City Code §§ 4.04, 4.05 [A]). In light of the purpose behind RPTL former 1122 Real Prop. Tax and 1124 Real Prop. Tax — to ensure that proper notice and an opportunity to be heard is given to delinquent taxpayers (see, e.g., Law v. Benedict, 197 A.D.2d 808, 809; Pompe v. City of Yonkers, 179 A.D.2d 628, 629, lv denied 81 N.Y.2d 706, cert denied 510 U.S. 871; City of New Rochelle v. Echo Bay Waterfront Corp., 268 App. Div. 182, affd 294 N.Y. 678, cert denied 326 U.S. 720) — we find the requirement that the Treasurer personally perform these tasks to be directory only (see, City of Yonkers v. Clark Son, 159 A.D.2d 535, 537, lv dismissed 76 N.Y.2d 845; see generally, Matter of City of New York [Levy], 278 App. Div. 1008; Village of Pleasantville v. Gross, 272 App. Div. 932, affd 297 N.Y. 767), and intended only to instruct and guide municipalities to insure procedural regularity and uniformity (see, Lancaster Sea Beach Improvement Co. v. City of New York, 214 N.Y. 1, 11). In the case at bar, these tasks were not performed by an official so unrelated to petitioner's tax department as to create some doubt as to the authenticity of the proceeding.

  3. Matter of Vilca v. Village of Port Chester

    255 A.D.2d 593 (N.Y. App. Div. 1998)   Cited 9 times

    The motion was properly denied. In an in rem proceeding "`where the interest[s] of a property owner will be substantially affected * * * and where the owner's name and address are known, due process requires that actual notice be given'" ( Pompe v. City of Yonkers, 179 A.D.2d 628, 629, lv denied 81 N.Y.2d 701, cert denied 510 U.S. 871, quoting Matter of McCann v. Scaduto, 71 N.Y.2d 164, 176; see also, Mennonite Bd. of Missions v. Adams, 462 U.S. 791; Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306). Thus, in commencing an in rem tax lien foreclosure proceeding, the taxing authority is required to comply with the provisions of the RPTL, which states, inter alia, that the enforcing officer "cause a copy of the notice to be mailed to the last known address of each owner of real property affected * * * as [it] appears upon the records in the office of the enforcing officer" (RPTL 1124; see also, Pompe v. City of Yonkers, 179 A.D.2d 628, 629, supra). Lack of technical compliance with RPTL 1124 (2) is necessarily fatal to an in rem tax foreclosure proceeding only where the failure to comply with the statute was the reason the property owner did not receive the notice to which he or she was entitled ( see, Wiesniewski v. Basinait, 59 A.D.2d 1028).

  4. Oneida Indian Nation v. Madison County

    665 F.3d 408 (2d Cir. 2010)   Cited 173 times
    Holding forfeited challenge to ruling that was not contested on appeal

    Indeed, state and federal courts have frequently decided, in cases where a plaintiff received actual notice, that the Due Process Clause was not offended even though the defendant had failed to fulfill all technical notice requirements imposed by statute or rule. See, e.g., United Student Aid Funds, Inc. v. Espinosa, ––– U.S. ––––, 130 S.Ct. 1367, 1378, 176 L.Ed.2d 158 (2010); In re Medaglia, 52 F.3d 451, 455 (2d Cir.1995); United States v. One 1987 Jeep Wrangler, 972 F.2d 472, 482 (2d Cir.1992); Sendel v. Diskin, 277 A.D.2d 757, 759, 716 N.Y.S.2d 471, 473 (3d Dep't 2000); Pompe v. City of Yonkers, 179 A.D.2d 628, 629–30, 578 N.Y.S.2d 585, 587 (2d Dep't 1992). B. The Counties' Procedures

  5. Pompe v. City of Yonkers

    81 N.Y.2d 706 (N.Y. 1993)

    Decided March 25, 1993 Appeal from (2d Dept: 179 A.D.2d 628) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED

  6. City of Peekskill v. Dashley Realty, Inc. (In re Forclosure of Liens)

    124 A.D.3d 778 (N.Y. App. Div. 2015)   Cited 2 times

    In response to the petitioner's prima facie showing, inter alia, that it complied with the notice requirements for a tax foreclosure proceeding (see RPTL 1125 ; In Rem Tax Foreclosure Action No. 47, 19 A.D.3d 547, 548, 798 N.Y.S.2d 82 ; Sendel v. Diskin, 277 A.D.2d 757, 758–759, 716 N.Y.S.2d 471 ), the appellant failed to demonstrate the merit of its defenses or the existence of any triable issues of fact (see RPTL 1130 ; RPTL 1134 ). In particular, the appellant admitted that it received actual notice of the proceeding (see Matter of Vilca v. Village of Port Chester, 255 A.D.2d 593, 594, 681 N.Y.S.2d 291 ; Pompe v. City of Yonkers, 179 A.D.2d 628, 629, 578 N.Y.S.2d 585 ). In addition, the appellant's defense that the amount assessed was incorrect was properly rejected (see Matter of County of Orange [Al Turi Landfill, Inc.], 75 A.D.3d 224, 239, 903 N.Y.S.2d 60 ; Matter of County of Orange [CKC of N.Y.], 278 A.D.2d 416, 717 N.Y.S.2d 375 ).

  7. Lyon v. Estate of Cornell

    269 A.D.2d 737 (N.Y. App. Div. 2000)   Cited 4 times
    Relying on Yagan and holding that eighteen days' advance notice of a tax sale was “insufficient as a matter of law to provide the Estate with sufficient time to present its objections”

    Supreme Court properly granted plaintiff's motion. The fact that the name was listed incorrectly does not invalidate the notice ( see, Keiser v. Young, 181 A.D.2d 170, 174, lv denied 80 N.Y.2d 761; Pompe v. City of Yonkers, 179 A.D.2d 628, 630, lv denied 81 N.Y.2d 706, cert denied 510 U.S. 871, reh denied 510 U.S. 1006; City of Yonkers v. G.H. Clark Son, 159 A.D.2d 535, 537, lv dismissed 76 N.Y.2d 845). The notice, however, was not "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" ( Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314; see also, Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799; Matter of McCann v. Scaduto, 71 N.Y.2d 164, 173).

  8. Law v. Benedict

    197 A.D.2d 808 (N.Y. App. Div. 1993)   Cited 25 times

    We agree. The purpose of the relevant statutory notice requirements is to provide the constitutionally mandated notice reasonably calculated to apprise interested parties of the pendency of the tax sale proceedings and afford them an opportunity to present their objections (see, S.A.B. Enters. v. Stewart's Ice Cream Co., 187 A.D.2d 875, lv denied 81 N.Y.2d 708; cf., Matter of McCann v. Scaduto, 71 N.Y.2d 164, 172-176). It follows, therefore, that the absence of strict technical compliance with each statute in the notification scheme for an in rem tax foreclosure proceeding is not a fatal defect if the interested parties receive actual notice, which is the goal of the scheme (Pompe v City of Yonkers, 179 A.D.2d 628, 629, lv denied 81 N.Y.2d 706). There is undisputed evidence in the record concerning the office practice and procedure followed by the tax officials in the regular course of business which shows that the notice required by RPTL 1124 (1) was properly addressed and mailed to plaintiff, thereby giving rise to the presumption that plaintiff received the notice (see, City of Yonkers v. Clark Son, 159 A.D.2d 535, 536, lv dismissed 76 N.Y.2d 845; see also, Nassau Ins. Co. v Murray, 46 N.Y.2d 828). The taxpayer has the right to rebut the presumption, but the rebuttal must consist of more than a mere denial of receipt (Matter of T.J. Gulf v. New York State Tax Commn., 124 A.D.2d 314, 315; see, Matter of Tax Foreclosure Action No. 33, 141 A.D.2d 437, 438, appeal dismissed 73 N.Y.2d 915). Plaintiff denied receipt of the tax bills for the property for 1989 and 1990 and the notice of the foreclosure proceeding.

  9. Maxim Dev. Grp. v. Montezuma Props., LLC

    2015 N.Y. Slip Op. 30143 (N.Y. Sup. Ct. 2015)   Cited 2 times

    It follows, therefore, that the absence of strict technical compliance with each statute in the notification scheme for an in rem tax foreclosure proceeding is not a fatal defect if the interested parties receive actual notice, which is the goal of the scheme. (Pompe v City of Yonkers, 179 AD 2d 628,629; lv. Den., 81 NY 2d 706)" Law v Benedict, 197 AD 2d 808, 809-810(3d Dept., 1993). The question then follows regarding whether actual notice is sufficient to defeat the statutory non-compliance.