Tax Lien Foreclosure: Matter of the Foreclosure of Tax Liens by County of Ontario

Appellate Division, Fourth Department

Tax Lien Foreclosure

Notice — Address on Record

Matter of the Foreclosure of Tax Liens by County of Ontario
653
Appealed from Ontario County Court

Background: The proceeding arose under an in rem tax foreclosure proceeding under RPTL Article 11. The taxpayer, who was incarcerated in the county jail when statutory notices were sent, argued that her incarceration imputed knowledge of her whereabouts to the county treasurer, charged with enforcement of tax liens. Notices sent to the taxpayer’s residence revealed a forwarding address in Rochester. The certified mailing of the notice to the alternate address was returned as unclaimed while the first -class mailings sent to the taxpayer’s residence and to the forwarding address both were unreturned.

Ruling: The supreme court properly denied the respondent’s motion seeking to reopen the default judgment of foreclosure in the proceeding pursuant to RPTL Article 11, Title 3. A motion to reopen a default judgment of tax foreclosure may not be brought later than one month after entry of the judgment and the respondent’s motion, brought outside that time limitation, therefore was untimely. The court concluded properly that the petitioner complied with the notice provisions of RPTL 1124 and 1125 and that compliance satisfied the respondent’s due process rights. The petitioner sent notice of the foreclosure proceeding both by certified mail and ordinary first-class mail to the respondent’s address, therefore the court refused to expand the definition of public record to include jail records.

Susan M. Helser for the appellant, David J. Whitcomb, of Muehe and Newton LLP for the appellant, and Jason S. Diponzio for the respondent