City of New York v. Realty Apts. Co.

72 A.D.2d 694, 421 N.Y.S.2d 565, 1979 N.Y. App. Div. LEXIS 13877

Opinion

Order, Supreme Court, New York County, entered December 15, 1978, which granted the respondents’ motion to vacate the default judgment of foreclosure entered May 25, 1978 obtained by the City of New York and vacated and set aside the deed executed and recorded pursuant to that judgment of foreclosure, insofar as said judgment and deed affect the two subject parcels, unanimously reversed, on the law, with costs and disbursements, the motion is denied and the judgment of foreclosure and deed reinstated in all respects. The granting of respondents’ motion to open their default in this in rem tax proceeding was improper because where the deed has been delivered and recorded, such relief is available only by way of an independent action (see Town of Somers v Covey, 2 NY2d 250). Further, in a recent appeal involving in rem tax foreclosure proceedings which, inter alia, related to several different parcels of the same owners, this court affirmed the order of Special Term for the reasons stated by Kent J. (Matter of City of New York v Owners of Property, 72 AD2d 504). The contentions now urged are based on defenses which were urged upon and rejected by Kent, J., and by this court in that prior appeal. We summarize our view as follows: the failure to receive notice does not affect the validity of the proceedings, and there was rio showing that the City Housing Development Administration ever undertook an obligation of payment for water and sewer charges or either of them. Concur—Sandler, J. P., Sullivan, Bloom, Lupiano and Ross, JJ.