| Orra Realty Corp. v Gillen |
| 2007 NY Slip Op 09750 [46 AD3d 649] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Orra Realty Corp., Appellant, v Thomas J. Gillen et al.,Respondents, et al., Defendants, and Suzann Blanco Rogers,Appellant. |
—[*1] Martin & Molinari, Esqs, LLP, Freeport, N.Y. (John E. Molinari of counsel), fordefendant-appellant. Kenneth Cooperstein, Centerport, N.Y., for respondents.
In an action pursuant to RPAPL article 15, inter alia, for a judgment declaring that a tax deedto certain real property dated June 27, 2005, is null and void, and that the defendant The GillenLiving Trust, doing business as Jumbo Investments, does not have absolute and unencumberedtitle to the real property, the plaintiff appeals, as limited by its brief, and the defendant SuzannBlanco Rogers, as administratrix of the estate of Mario Blanco, separately appeals, as limited byher brief, from stated portions of a judgment of the Supreme Court, Nassau County (Robbins, J.),entered April 27, 2006, which, among other things, upon an order of the same court enteredMarch 9, 2006, granting the motion of the defendant The Gillen Living Trust, doing business asJumbo Investments, for summary judgment and denying their respective cross motions forsummary judgment, declared that the tax deed is valid, and that the defendant The Gillen LivingTrust, doing business as Jumbo Investments, has absolute and unencumbered title to the realproperty.
Ordered that the judgment is reversed insofar as appealed from, on the law, with one bill ofcosts payable by the respondents, the respective cross motions of the plaintiff and the defendantSuzann Blanco Rogers, as administratrix of the estate of Mario Blanco, for summary judgmentare granted, the motion of the defendant The Gillen Living Trust, doing business as Jumbo [*2]Investments, for summary judgment is denied, and it is declaredthat the subject tax deed dated June 27, 2005, is null and void and that the defendant The GillenLiving Trust, doing business as Jumbo Investments, does not have absolute and unencumberedtitle to the real property.
In December 1986 Leonard Shumsey gave a mortgage to Mario Blanco secured by realproperty located at 75 West Sunrise Highway in Freeport (hereinafter the premises), whichmortgage was duly recorded in the office of the Nassau County Clerk (hereinafter the recordingoffice). In April 2002 Mario Blanco executed a partial assignment of the mortgage to theplaintiff. Although the partial assignment of the mortgage to the plaintiff was indexed in therecording office under an incorrect section, block, and lot number, it was correctly indexed in thegrantor-grantee alphabetical index maintained by the recording office, under "Blanco, Mario."
At a tax auction conducted by the Village of Freeport on December 13, 2002, the defendantThe Gillen Living Trust, doing business as Jumbo Investments (hereinafter GLT), purchased atax lien certificate referable to the premises. On December 16, 2003 Mario Blanco (hereinafterthe decedent) died. In December 2004 GLT sent a notice to redeem to the owner of record bycertified mail, return receipt requested, addressed to "Mario Blanco," at the address of record inthe records of the tax collecting officer (see Real Property Tax Law former § 1464[1]; Local Law No. 7 [1994] of Vil of Freeport). The postal return receipt card (hereinafter thereturn receipt) indicated that the recipient was "Executor of Estate of Mario Blanco." The returnreceipt was signed and the "agent" box thereon was checked by one of the decedent's sons GarySteven Blanco (hereinafter Gary), who was a legatee under his will. Gary signed the returnreceipt as "Gary Steven Blanco, 'c/o Mario Blanco Estate,' " even though he had not beenappointed as a representative of the decedent's estate. On March 15, 2005 the decedent'sdaughter, the defendant Suzann Blanco Rogers, was appointed the administratrix of thedecedent's estate.
Notwithstanding its knowledge of the decedent's death, GLT did not petition the Surrogate'sCourt for the appointment of an administrator, as it could have done pursuant to SCPA 1402 (1)(b). In addition, although GLT had actual knowledge of the partial assignment of the mortgage tothe plaintiff, no notice to redeem was sent to the plaintiff, since GLT only searched the records inthe recording office under the correct section, block, and lot number, and the partial assignmentthat would have revealed the plaintiff's address had been filed under the incorrect section, block,and lot number. Since there were no responses to the notices to redeem, the Village, on June 27,2005, issued a tax deed to GLT with respect to the premises. The plaintiff commenced thisaction, inter alia, for a judgment declaring that the tax deed is null and void and that GLT doesnot have absolute and unencumbered title to the premises. The plaintiff named GLT, SuzannBlanco Rogers, as administratrix of the estate of Mario Blanco (hereinafter the estate), andseveral others as defendants. The estate cross-claimed against GLT, seeking the same relief, thatis, a judgment declaring that the tax deed is null and void and that GLT does not have absoluteand unencumbered title to the premises. The Supreme Court declared that the tax deed was valid,and that GLT has absolute and unencumbered title to the premises. We reverse.
Due process does not require actual receipt of notice before issues concerning a person'sproperty interests may be adjudicated; it is sufficient that the means selected for providing noticeis "reasonably calculated, under all the circumstances, to apprise interested parties of thependency of the action" (Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314[1950]). Here, although GLT conceded, in its submissions to the Supreme Court, that it hadknowledge of the decedent's death, GLT incorrectly contends on appeal that notice was properlysent to the estate [*3]because, at the time the notices to redeemwere sent, no representative of the estate had been appointed. In addition, although GLT admittedin its submissions to the Supreme Court that it had prior knowledge of the indexing errorpertaining to the partial assignment of the mortgage to the plaintiff, and, indeed, it had previouslyadvised the plaintiff of that fact, GLT inexplicably failed to search the grantor-granteealphabetical index for the partial assignment and to send notice to the known mortgagee. Underthese circumstances, we conclude that the means that GLT selected for providing notice were notreasonably calculated to apprise the interested parties of the pendency of the tax sale and transferand afford them an opportunity to redeem the outstanding tax lien (see generally Covey vTown of Somers, 351 US 141 [1956]; Harville v County of Erie, 148 AD2d 954, 956[1989] [Green, J., dissenting]; Blum v Stone, 127 AD2d 549 [1987]; cf. Temple Bnai Shalom of Great Neck vVillage of Great Neck Estates, 32 AD3d 391 [2006]). Accordingly, GLT's motion forsummary judgment should have been denied, the respective cross motions of the plaintiff and theEstate should have been granted, and a declaration made that the tax deed is null and void, andthat GLT does not have absolute and unencumbered title to the premises. Schmidt, J.P., Skelos,Lifson and Balkin, JJ., concur.