| Matter of County of Ontario (Middlebrook) |
| 2009 NY Slip Op 00912 [59 AD3d 1065] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of the Foreclosure of Tax Liens by Proceeding inRem Pursuant to Article 11 of the Real Property Tax Law by County of Ontario, Respondent.Bruce Edwin Middlebrook, Appellant. |
—[*1] Jason S. Diponzio, P.C., Rochester (Jason S. Diponzio of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Ontario County (Craig J. Doran, A.J.), enteredMay 2, 2008. The order denied the motion of respondent to vacate a default judgment offoreclosure.
It is hereby ordered that the order so appealed from is unanimously reversed in the exerciseof discretion without costs, the motion is granted and the judgment entered February 29, 2008 isvacated.
Memorandum: Respondent appeals from an order denying his motion to vacate a judgmentof foreclosure entered upon his default. According to respondent, the judgment was enteredbased on his failure to pay the sum of approximately $24 in interest on overdue property taxes(see generally RPTL 1110 [1], [2]). We note at the outset that Supreme Court erred indetermining that it lacked the inherent authority to vacate the default judgment "for sufficientreason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp.,100 NY2d 62, 68 [2003]), and we conclude under the circumstances of this case that the courtimprovidently exercised its discretion in denying respondent's motion (see generally Shouse v Lyons, 4 AD3d821, 823 [2004]). The record establishes that respondent in fact paid his property taxes bythe deadline provided by petitioner in order to avoid losing his property. Even assuming,arguendo, that respondent received notice that he owed interest on those delinquent propertytaxes in the amount of approximately $24, we conclude that the entry of a default judgmentbased on the failure to pay that minor amount of interest would result in a disproportionatelyharsh result. We thus conclude "that this is an appropriate case in which to exercise our broadequity power to vacate [the] default judgment" (European Am. Bank v Harper, 163AD2d 458, 460 [1990]; see generally Alliance Prop. Mgt. & Dev. v Andrews Ave.Equities, 70 NY2d 831, 832 [1987]). Present—Scudder, P.J., Martoche, Smith, Greenand Gorski, JJ.