Kennedy v. Mossafa

291 A.D.2d 378, 737 N.Y.S.2d 373, 2002 N.Y. App. Div. LEXIS 1272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2002
• Status: Published

Opinions

—In a proceeding pursuant to RPAPL article 15 to quiet title to certain real property, the defendant third-party plaintiff, Mahshid Mossafa, appeals from an order of the Supreme Court, Orange County (Owen, J.), entered April 27, 2000, which granted the plaintiffs motion for summary judgment and the third-party defendants’ application for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed, with costs.

The defendant Mahshid Mossafa is the former owner of a parcel of vacant real property in the Town of Newburgh, County of Orange. The County foreclosed on the parcel for nonpayment of 1996 taxes. The parcel of land was then sold to the plaintiff, Ellen J. Kennedy, who brought the instant proceeding to quiet title pursuant to RPAPL article 15. Mossafa brought a third-party action (denominated a counterclaim) against, among others, the County to vacate the tax deed, inter alia, on the ground that she did not receive adequate notice of the foreclosure proceeding.

It is well settled that 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” (Matter of McCann v Scaduto, 71 NY2d 164, 176; see, Mennonite Bd. of Missions v Adams, 462 US 791; Schroeder v City of New York, 371 US 208; Mullane v Central Hanover Bank & Trust Co., 339 US 306).

There is no rigid rule establishing the adequacy of notice; instead, the reasonableness of notice depends upon a balancing of the interests of the State against the interests of the individual “in actually being informed of proceedings affecting rights or property” (Matter of McCann v Scaduto, supra at 173). Under this standard, the United States Supreme Court has found that under certain circumstances a mailed notice satisfies the requirements of due process (see, Mennonite Bd. of Missions v Adams, supra; Greene v Lindsey, 456 US 444) since it “is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice” (Tulsa Professional Collection Servs. v Pope, 485 US 478, 490).

The County sent Mossafa notification of impending foreclosure on October 17, 1997, at the address listed on her deed— the only address ever recorded for Mossafa on the tax assessment roll. It is undisputed that Mossafa did not receive the notice; it was returned to the Commissioner of Finance marked “not deliverable.” Mossafa, it seems, had moved in 1991 to another part of the same town. Although she claims to have notified the Town in writing of the new address, she has submitted no evidentiary proof beyond her own conclusory assertion of this alleged notification (cf., Tobia v Town of Rockland, 106 ). Mossafa faults the County for sending the notice to her old address and failing to investigate further and ascertain her current address. Yet, the burden is on the property owner to keep her address current (see, S.A.B. Enters, v Stewart’s Ice Cream Co., 187 AD2d 875; Matter of Girrbach v Levine, 132 AD2d 41, 43; cf., Tobia v Town of Rockland, supra at 828).

Moreover, it is undisputed that each year from 1991 until 1998, the Town mailed the tax bills to Mossafa’s old address, Mossafa received those bills despite the fact that they were sent to an allegedly incorrect address, and she paid those bills, with the exception of 1996. Indeed, Mossafa was alerted to her delinquency when she received her 1997 and 1998 tax bills. Mossafa apparently never took any additional steps to notify the Town or County of her correct address, even though she was on notice that the Town did not have her current address on file. In addition, Mossafa even claims to have written a check for the 1996 taxes, but admits that the check was never cashed; she does not claim to have taken any steps to investigate why her check was not cashed. Despite Mossafa’s contentions to the contrary, the County was not under any obligation to further investigate her address when the foreclosure notice was returned as undeliverable (see, Mennonite Bd. of Missions v Adams, supra at 798-799 n 4; Matter of ISCA Enters, v City of New York, 77 NY2d 688, 701-702, cert denied 503 US 906; Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 426; Matter of Girrbach v Levine, supra at 44).

Mossafa also argues that because her 1997 and 1998 taxes were paid with checks that listed her correct name and address, and they were sent in envelopes that listed her current address, the County was on notice of her correct address. The dissent agrees and would impose on the County obligations beyond those recognized as constitutionally adequate simply because Mossafa’s new address was listed on her checks in payment of 1997 and 1998 taxes. Yet, this circumstance is not tantamount to a taxpayer’s request to effectuate a permanent change of address for purposes of all property-related tax documents sent to her (see, Sendel v Diskin, 277 AD2d 757, 760; cf., Tobia v Town of Rockland, supra at 828).

Our respected dissenting colleagues also seem to imply that Matter of McCann v Scaduto (supra), requires actual receipt by the taxpayer of notice of foreclosure. This is expressly not required by statute (see, RPTL 1125 [3] [b]) and is a distortion of the actual notice requirement which that case imposed for constitutional purposes. This requirement was contrasted with the statutory authorization for constructive notice by publication found to fall short of the due process constraint of notice reasonably calculated to apprise the taxpayer of the proceeding. This does not require the taxing authority to do any more than the County of Orange did in this case — to rely on the names and addresses of owners listed in the tax assessment rolls — as this Court has repeatedly held (see, Cornwall Warehousing v Town of New Windsor, 238 AD2d 370, 371; Matter of T.E.A. Mar. Automotive Corp. v Scaduto, 199 AD2d 511, 513; Anthony v Town of Brookhaven, 190 AD2d 21, 28). The Appellate Divisions, Third and Fourth Departments, agree with the holding of this Court (see, S.A.B. Enters, v Stewart’s Ice Cream Co., supra, Keiser v Young, 181 AD2d 170, 173; Matter of Girrbach v Levine, supra at 43; Tobia v Town of Rockland, supra at 829; Matter of Foreclosure of Tax Liens, 278 AD2d 814, 815).

Mossafa’s remaining contentions are without merit. Gold-stein, J.P., Crane and Cozier, JJ., concur.