Josephine Weigner v. The City of New York

852 F.2d 646, 1988 U.S. App. LEXIS 9776, 1988 WL 73452

• Court: Court of Appeals for the Second Circuit
• Decided: July 14, 1988
• Docket: 570, Docket 87-7743
• Status: Published

Opinions

JON 0. NEWMAN, Circuit Judge:

Josephine Weigner appeals from a judgment of the District Court for the Eastern District of New York (Henry Bramwell, Judge) granting summary judgment against her in a diversity suit challenging the constitutional validity of tax lien foreclosure procedures of the City of New York. Weigner argues that the notice by first-class mail furnished pursuant to the City’s Administrative Code was inadequate under the Due Process Clause of the Fourteenth Amendment. She argues that, at a minimum, due process requires notice by certified mail, return receipt requested, to property owners who risk tax lien foreclosure of their interests in real estate. Additionally, Weigner contends that the City’s notice of foreclosure was inadequate under state law and that the Board of Estimate improperly denied her application for a discretionary release of the City’s interest in the property after the deed of foreclosure was entered. We conclude that notice sent by ordinary mail of the penden-cy of the tax lien foreclosure proceeding is all that the Constitution requires. We also reject Weigner’s claims regarding the adequacy of notice under state law and the Board of Estimate’s decision to deny a release.

Background

Josephine Weigner is a resident of Florida. Between 1959 and 1962 she acquired a group of 14 vacant parcels of land in South Jamaica, Queens, New York. Weigner failed to pay property taxes on the lots beginning in 1977. On October 1, 1981, the City of New York commenced an in rem tax foreclosure action against all real property in Queens on which real estate taxes had not been paid for a year or more. Weigner’s 14 lots were among the 5,229 parcels in this proceeding. At the time the action was commenced, Weigner owed approximately $31,000 in back taxes. The market value of the 14 lots is estimated by the parties to be between $151,000 and $250,000.

Pursuant to the City’s Administrative Code, notices of the commencement of the tax foreclosure action were mailed to Weig-ner at her home in Florida. The City had Weigner’s address because she had filed with the Commissioner of Finance an “in rem card,” which enables the City to mail a notice to the designated address in the event that properties listed on the card are included in an in rem tax foreclosure action. Administrative Code § 11-417 (Lenz & Riecher 1986). City records reveal that on October 1, 1981, notices of tax lien foreclosure were sent to Weigner by ordinary first class mail.¹ The parties dispute whether Weigner received these notices.²

The “Notice of Foreclosure” sent to Weigner was a form letter that apprised “[a]ll persons having or claiming to have an interest in the real property” described on a list of tax delinquent parcels, that a foreclosure action had been commenced against the parcels. The notice indicated that the property could be redeemed on or before December 18, 1981. The notice further stated that anyone who failed to redeem his property would be “forever barred and foreclosed” of any right in the property “except for the remedies provided in Sections D17-7.0(c) and D17-25.0 of the Administrative Code.” Section D17-7.0(c) (now renumbered as section ll-407(c)) permits the late redemption of property after the redemption date, but prior to entry of a judgment of foreclosure. Section D 17-25.0 (now renumbered as section 11-424) permits the “release” of the City’s interest in property after entry of a judgment of foreclosure. An application for release must be made within two years from the date the City’s deed of foreclosure is recorded. A release application made within four months of the City’s deed, “shall be granted,” provided that it is timely and the applicant pays all back taxes, penalties, and interest. Administrative Code § 11 — 424(f). An application made after four months and prior to two years is within the discretion of the Board of Estimate. Administrative Code § ll-424(g). See generally Solomon v. City of New York, 94 A.D.2d 283, 286-87, 464 N.Y.S.2d 160, 162 (1st Dep’t 1983).

Weigner failed to redeem her property by the December 18, 1981, deadline, nor did she request a late redemption. On March 6, 1984, a judgment of foreclosure was entered in the action. The City took title to the properties pursuant to a deed recorded on March 15, 1984. That gave Weigner until July 15, 1984, to apply for a mandatory release and until March 15, 1986, to apply for a discretionary release. On March 12,1986, just three days short of the two-year discretionary release deadline, Weigner filed release applications with respect to each of her 14 parcels. After informing Weigner that her case for a discretionary release was weak, giving her an opportunity to submit more evidence, and holding a hearing, the Board of Estimate denied her applications.

Weigner initiated the present suit on October 22, 1986. Her complaint alleged that she received inadequate notice of the foreclosure proceeding and that by denying her release applications the Board of Estimate discriminated against her as an out-of-state resident and otherwise abused its discretion. The District Court granted summary judgment for the City. 668 F.Supp. 135 (E.D.N.Y.1987). The Court found that due process was satisfied because Weigner actually received notices of foreclosure.³ The District Court further concluded that Weig-ner’s equal protection claim lacked a factual basis and that the Board of Estimate had not abused its wide discretion under state law in denying her release applications.

Discussion

A. Notice

Weigner contends that summary judgment was improper because there is a disputed issue of material fact as to whether she received the notices of foreclosure that were sent to her. Though Weigner conceded in an affidavit that she received “some tax bills and other form letters from the City of New York” regarding the delinquent parcels, she denied receiving “proper notice” and now claims that she never received the notices of foreclosure. She argues that this is an issue of material fact because the notice provided by the Administrative Code was constitutionally insufficient unless received. Her claim raises the issue whether due process requires that notice of a tax lien foreclosure must not only be mailed to a property owner but also must be received.

Generally, when litigation is initiated to deprive individuals of their property, due process is satisfied by “notice 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, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) (emphasis added); accord Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180 (1983). The proper inquiry is whether the state acted reasonably in selecting means likely to inform persons affected, not whether each property owner actually received notice. As long as the state employs means “such as one desirous of actually informing the [property owner] might reasonably adopt to accomplish [that purpose],” then it has discharged its burden. Mullane, supra, 339 U.S. at 315, 70 S.Ct. at 657. “The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected .... ” Id. Importantly, the state’s obligation to use notice “reasonably certain to inform those affected” does not mean that all risk of non-receipt must be eliminated: “ ‘Now and then an extraordinary case may turn up, but constitutional law like other mortal contrivances has to take some chances, and in the great majority of instances no doubt justice will be done.’ ” Id. at 319, 70 S.Ct. at 660 (quoting Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1, 2, 56 L.Ed. 65 (1911)); see Schroeder v. City of New York, 371 U.S. 208, 214, 83 S.Ct. 279, 283, 9 L.Ed.2d 255 (1962).

The Supreme Court has frequently said and just recently restated that, under most circumstances, notice sent by ordinary mail is deemed reasonably calculated to inform interested parties that their property rights are in jeopardy. Tulsa Professional Collection Services, Inc. v. Pope, — U.S. -,-, 108 S.Ct. 1340, 1343, 99 L.Ed.2d 565 (1988); Mennonite Board of Missions v. Adams, supra, 462 U.S. at 800, 103 S.Ct. at 2712; Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 659. The mails are an “efficient and inexpensive means of communication” that generally may be relied upon to deliver notice where it is sent. Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 660. In the context of a wide variety of proceedings that threaten to deprive individuals of their property interests, the Supreme Court has consistently held that mailed notice satisfies the requirements of due process. See, e.g., Tulsa Professional Collection Services, Inc. v. Pope, supra, — U.S. at -, 108 S.Ct. at 1345 (notice to creditors in probate proceedings); Mennonite Board of Missions v. Adams, supra, 462 U.S. at 799-800, 103 S.Ct. at 2711-12 (notice to mortgagee of tax foreclosure); Greene v. Lindsey, 456 U.S. 444, 455, 102 S.Ct. 1874, 1880, 72 L.Ed.2d 249 (1982) (notice to public housing tenants of forcible entry and de-tainer actions); Schroeder v. City of New York, 371 U.S. 208, 214, 83 S.Ct. 279, 283, 9 L.Ed.2d 255 (1962) (notice of condemnation proceeding); Walker v. City of Hutchinson, 352 U.S. 112, 116, 77 S.Ct. 200, 203, 1 L.Ed.2d 178 (1956) (notice of condemnation proceeding); Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 659 (notice to trust beneficiaries of judicial settlement of trust accounts). Though the mails are not one hundred percent reliable, none of these cases requires actual receipt of notice that is properly mailed. See, e.g., Schroeder v. City of New York, supra, 371 U.S. at 214, 83 S.Ct. at 283 (City’s duty to notify property owner of condemnation proceeding was “an obligation which the mailing of a single letter would have discharged”) (emphasis added).⁴

Weigner contends that she was constitutionally entitled to notice by certified mail, return receipt requested. No doubt that form of notice would have advantages. The signed receipt would provide virtually conclusive evidence that the notice was received, thereby permitting proof of receipt, if thought to be constitutionally required, to be established on a more substantial basis than simply weighing the inferences from mailing against the property owner’s denial. Moreover, the delivery and request for signature of a return receipt would alert the property owner to the fact that the letter contains something of more than routine interest. Indeed, a substantial argument could be made for using such notice for a variety of important items now sent by ordinary first-class mail, for example, the notice from a district court of entry of a judgment, see Fed.R.Civ.P. 77(d) (authorizing mailed notice and specifying that lack of notice does not warrant relief from failure to appeal).

However, in deciding what the Constitution requires, we are not free to select forms of notice simply because they are advantageous. Even if beneficial, means of notice beyond those reasonably calculated to reach interested parties are not required by due process in the context of foreclosures. Mullane, supra, 339 U.S. at 313-14, 317-18, 70 S.Ct. at 656-57, 658-59. The Supreme Court has repeatedly held that notice by first-class mail is sufficient, notwithstanding the Court’s obvious awareness that not every first-class letter is received by the addressee. See, e.g., id. at 319, 70 S.Ct. at 659. Particularly where mailing is supplemented by other forms of notice such as posting or publication, the risk of non-receipt is constitutionally acceptable. Thus, a landowner’s opportunity to learn of condemnation proceedings through notices posted on the land or published in a newspaper circulated in the area in which the land is located, see Schroeder v. City of New York, supra, 371 U.S. at 209, 83 S.Ct. at 280, or a creditor’s opportunity to learn of his debtor’s death by notice published by a probate court in the area of the debtor’s residence, see Tulsa Professional Collection Services, Inc. v. Pope, supra, 108 S.Ct. at 1342, reduces the chances that property owners who fail to receive mailed notice will be taken completely by surprise.

In the circumstances of the pending ease, the small risk that the notice sent by first-class mail would not arrive is acceptable for two reasons. First, the mailing was not the only device relied upon to give notice. The City published foreclosure notices once a week for six successive weeks in the City Record and in two newspapers circulated throughout Queens County. See Administrative Code § ll-406(a). Additionally, notices of foreclosure were posted in the Queens County courthouse and in three other conspicuous locations in the Borough of Queens. See Administrative Code § 11—406(d). The mailing was thus a supplemental form of notice, albeit a necessary one, to the form of notice relied on in an earlier day as the exclusive form of notice. See Ballard v. Hunter, 204 U.S. 241, 254-55, 27 S.Ct. 261, 265-66, 51 L.Ed. 461 (1907); Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559, 563-64, 9 S.Ct. 603, 605-06, 32 L.Ed. 1045 (1889). A second reason for tolerating the risk of non-receipt of first-class mail in this case is Weigner’s own conduct in failing to pay taxes. The well-known inevitability of taxes and the consequences of not paying them are themselves likely to alert a tax delinquent property owner to the possibility of foreclosure. The proceeding in this case was initiated against parcels of real property that had been tax delinquent for over a year. Weigner had failed to pay property taxes for over four years and concedes receiving tax bills and other letters from the City apprising her of her delinquency. A person in Weigner’s position can reasonably be expected to know that foreclosure is imminent and to take the steps necessary to protect her interests.⁵ Under these circumstances, notice by ordinary mail supplemented by publication and posting was reasonably calculated to inform the parties affected. Due process does not require that notice sent by first-class mail be proven to have been received.⁶

Weigner further argues that the notice provided by the Administrative Code was constitutionally insufficient because she was never informed of entry of the foreclosure judgment or of the imminent lapse of her remedies of mandatory and discretionary release. However, due process only requires notice of “the pendency of the action” and an opportunity to respond. Mullane, supra, 339 U.S. at 314, 70 S.Ct. at 657; Mennonite Board of Missions v. Adams, supra, 462 U.S. at 795, 103 S.Ct. at 2709; see Greene v. Lindsey, supra, 456 U.S. at 451, 102 S.Ct. at 1878. The City discharged its burden by sending notice that was reasonably calculated to inform interested parties that the foreclosure action had been initiated and to apprise them of the availability of the redemption and release remedies. Once the City sent this notice, it was not required to send additional notices as each step in the foreclosure proceeding was completed or when each of the available remedies was about to lapse. See Calhoun v. Jennings, 512 N.E.2d 178, 184 (Ind.1987); cf. United States v. Locke, 471 U.S. 84, 108-10, 105 S.Ct. 1785, 1799-1800, 85 L.Ed.2d 64 (1985); Texaco, Inc. v. Short, 454 U.S. 516, 536, 102 S.Ct. 781, 796, 70 L.Ed.2d 738 (1982).

Even if Weigner did not actually receive the initial notices of foreclosure, the City’s failure to send additional notice of the release periods was not constitutionally deficient. By the time the mandatory release period lapsed in July 1984, Weigner had failed to pay taxes on her property for over seven years. When the discretionary release period lapsed in March 1986, she had been tax delinquent for almost ten years. Weigner concedes she was aware of her delinquency by virtue of tax bills and other letters the City sent. She should have realized that her failure to pay taxes for such a long period of time would result in a foreclosure, and she could easily have contacted the City at any time to determine the status of her property and to take steps to protect it. In short, the likelihood of the City proceeding against Weigner’s property was so certain from the circumstances of her tax delinquency that additional written notice of deadlines to avoid foreclosure was unnecessary. In an analogous context, this Court has held that the failure of the court clerk to mail notice to litigants of the filing of an order in the district court does not relieve a party from complying with deadlines running from the filing of such an order because a party to litigation ought to anticipate the filing of such orders. See Wakefield v. Northern Telecom, Inc., 813 F.2d 535, 541-42 (2d Cir.1987) (time to file bill of costs); Fed.R.Civ.P. 77(d) (time to file notice of appeal).

In addition to her constitutional claim, Weigner contends that the notice provided by the City was inadequate under state law. Specifically, Weigner asserts that she should have been furnished with a summons and complaint as provided for in the New York Civil Practice Law and Rules (“CPLR”) and with other notices as provided for in the New York Real Property Tax Law. Weigner’s claims are without merit because, in tax matters, local ordinances such as the Administrative Code take precedence over the CPLR and the Real Property Tax Law:

The rule of construction of tax statutes has been entrenched that city charter provisions describing form and procedure should be preferred to the general provisions of the tax laws; only when the city charter is silent as to form and procedure is resort to be made to the general tax laws; and when both the city charter and State tax laws are silent, the provisions of the CPLR or comparable practice statutes may then be applied.

Stevens Medical Arts Building v. City of Mount Vernon, 72 A.D.2d 177, 181-82, 424 N.Y.S.2d 230, 233 (2d Dep’t 1980); see McCann v. Scaduto, 71 N.Y.2d 164, 171 n. 2, 524 N.Y.S.2d 398, 400 n. 2, 519 N.E.2d 309, 311 n. 2 (1987); People ex rel. Savory, Inc. v. Plunkett, 295 N.Y. 180, 182-83, 66 N.E.2d 46 (1946); N.Y. Real Prop. Tax Law § 2006 (McKinney Supp.1988). Since the Administrative Code contains specific provisions regarding notice of tax foreclosure proceedings, the Real Property Tax Law and the CPLR do not apply. See McCann v. Scaduto, supra, 71 N.Y.2d at 171 n. 2, 524 N.Y.S.2d at 400 n. 2, 519 N.E.2d at 311 n. 2 (declining to supplement local tax sale notice provisions with requirements of Real Property Tax Law and CPLR).

B. Denial of Release

Weigner contends that the Board of Estimate’s denial of her release application was improper. Primarily, she argues that the denial was unlawful because other applicants “less worthy” than she were granted releases. She also alleges that the Board discriminated against her as an out-of-state resident, and she even suggests that the Board denied her application because she refused to pay bribes. We agree with the District Court that these contentions are without merit.

The Board of Estimate has virtually unlimited discretion under Administrative Code § ll-424(g) (formerly section D17-25.0(g)) whether to grant a release application such as Weigner’s that is filed after the four-month mandatory release period has expired. Solomon v. City of New York, supra, 94 A.D.2d at 286-87, 464 N.Y.S.2d at 162; Sixteen Eighty West 7th Corp. v. Board of Estimate, 109 A.D.2d 799, 800, 486 N.Y.S.2d 311, 312 (2d Dep’t 1985); see Dwyer v. Lindsay, 23 N.Y.2d 562, 564-65, 297 N.Y.S.2d 942, 943-44, 245 N.E.2d 708, 709 (1969). In considering the application, the Board may look at the length of the underlying tax delinquency, the amount of unpaid taxes, and the reasons for nonpayment. See Dwyer v. Lindsay, supra, 23 N.Y.2d at 565, 297 N.Y.S.2d at 944, 245 N.E.2d at 709; Solomon v. City of New York, supra, 94 A.D.2d at 286-87, 464 N.Y.S.2d at 162. Moreover, the Board is prohibited from releasing the property if the City has sold it, the property has been condemned or assigned to a City agency, or the property is the subject of contemplated use for any capital or urban renewal project. Administrative Code § ll-424(g). The Board need not give reasons for its ultimate decision. Solomon v. City of New York, supra, 94 A.D.2d at 287, 464 N.Y.S.2d at 162.

The Board acted within its discretion in denying Weigner’s application. At the time of the Board’s consideration, the property had been tax delinquent for over nine years, and Weigner had no explanation as to why she had failed to pay other than that payment had become “financially inexpedient.” Moreover, Weigner did not occupy the property, nor did she have any plans to develop it in a useful way. Finally, the City was considering using the land for a housing program. Under these circumstances, the Board was fully justified in denying the release.

We reject Weigner’s remaining claims for substantially the reasons set forth in the District Court’s opinion. The Board was entitled to consider the fact that Weig-ner was an absentee landowner, and there is no evidence that the Board discriminated against her because she was an out-of-state resident as opposed to an absentee owner who lived within the state. Similarly, Weigner’s claim that her release application was denied for failure to pay bribes or for other improper motives is wholly unsupported in the record.

The decision of the District Court granting summary judgment to the City of New York is affirmed.

1 . The notices were sent with respect to 13 of the 14 parcels owned by Weigner. The 14th parcel is a narrow strip of land, and Weigner has acknowledged that whatever ruling is made with respect to the 13 parcels for which notice was mailed should govern the 14th parcel.

2 . The City presented evidence of its practices concerning the mailing of foreclosure notices. Weigner denies that she ever received legal papers, although she admitted receiving "tax bills and other form letters” concerning overdue taxes on her Queens property.

3 . The District Court’s finding that notices were received was limited to the 13 parcels as to which notices had been sent. See footnote 1, supra. With respect to the 14th parcel, for which notice was not sent, the District Court ruled that Weigner's claim was barred by the two-year statute of limitations. See Administrative Code § ll-412(c). Because we hold that due process was satisfied with respect to the 13 parcels for which notices were sent and because Weigner has agreed that the disposition with regard to the 13 parcels should govern the 14th parcel, we need not consider the statute of limitations issue. See Schroeder v. City of New York, 371 U.S. 208, 213-14, 83 S.Ct. 279, 282-83, 9 L.Ed.2d 255 (1962); Alliance Property Management and Development, Inc. v. Andrews Avenue Equities, Inc., 133 A.D.2d 30, 518 N.Y.S.2d 804 (1st Dep’t 1987).

4 . In some special circumstances, mailed notice may be inadequate. For example, where the state knows that an interested party does not reside at the mailing address, Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972); Sterling v. Environmental Control Board, 793 F.2d 52, 57 (2d Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 579, 93 L.Ed.2d 582 (1986), or where the recipient is known to be someone who could not understand mailed notice, Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956), then due process may require more than sending a letter to the address on file. No such special circumstances exist in the present case. The address to which New York City sent the notices was Weigner’s home address, which she herself provided in her in rem card. Nor is there any suggestion that Weigner was unable to appreciate the significance of the letters that the City sent.

5 . We do not mean to suggest that a party's ability to take steps to safeguard his interests relieves the state of its constitutional obligation to use notice reasonably calculated to inform interested parties. See Mennonite Board of Missions v. Adams, supra, 462 U.S. at 799, 103 S.Ct. at 2711. However, in making the initial determination of what notice is reasonable, the likelihood that a party will learn of the proceedings without notice from the state and his ability to protect himself are relevant circumstances. See Bender v. City of Rochester, 765 F.2d 7, 11 (2d Cir.1985).

6 . Weigner’s insistence that a recent decision of the New York Court of Appeals, McCann v. Scaduto, 71 N.Y.2d 164, 524 N.Y.S.2d 398, 519 N.E.2d 309 (1987), imposes a constitutional requirement of certified mailing, is based on a misreading of that case. In McCann, the Court of Appeals held that Nassau County's tax foreclosure procedures violated due process. The County’s Administrative Code provided for notice to property owners of a tax lien sale by publication only. After the sale, the purchaser of the tax lien was required to inform the property owner of his redemption rights by certified mail, return receipt requested. The Court of Appeals held that this scheme violated due process because the initial tax sale was a substantial deprivation of property that required mailed or “actual” notice as opposed to published or “constructive” notice to persons whose addresses were known. Id.Id. 71 N.Y.2d at 177, 524 N.Y.S.2d at 403-04, 519 N.E.2d at 313-15 (citing Mennonite Board of Missions v. Adams, supra). The opinion is crystal clear that "actual" notice means notice sent to the recipient, as opposed to published notice. Id. 71 N.Y.2d at 174, 524 N.Y.S.2d at 402, 519 N.E.2d at 312. Nowhere does the opinion suggest that “actual” notice means notice that is in fact delivered, much less notice by certified mail, return receipt requested. Weigner’s attempt to construe McCann as an expansion of the Mullane and Mennonite cases on which McCann relies is unavailing.