| Zamor v L&L Assoc. Holding Corp. |
| 2011 NY Slip Op 05691 [85 AD3d 1154] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Marie Zamor, Appellant, v L&L Associates Holding Corp.,Also Known as L&L Associates (2/02) Holding Corp., Respondent, et al.,Defendants. |
—[*1] Levy & Levy, Great Neck, N.Y. (Joshua Levy of counsel), for respondent.
In an action, inter alia, for a judgment declaring that a deed executed by the defendantCounty of Nassau conveying to the defendant L&L Associates Holding Corp., also known asL&L Associates (2/02) Holding Corp., certain real property owned by the plaintiff is null andvoid, the plaintiff appeals from an order of the Supreme Court, Nassau County (Winslow, J.),entered November 25, 2009, which granted the motion of the defendant L&L Associates HoldingCorp., also known as L&L Associates (2/02) Holding Corp., for summary judgment dismissingthe complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of the defendant L&L Associates Holding Corp., also known asL&L Associates (2/02) Holding Corp., which were for summary judgment dismissing the causesof action for a judgment declaring that a deed executed by the defendant County of Nassauconveying to the defendant L&L Associates Holding Corp., also known as L&L Associates(2/02) Holding Corp., certain real property owned by the plaintiff is null and void and allegingunjust enrichment insofar as asserted against it, and substituting therefor provisions denyingthose branches of the motion as premature, with leave to renew upon completion of discovery; asso modified, the order is affirmed, with costs to the plaintiff.
In February 2002 the Nassau County Treasurer (hereinafter the County Treasurer) sold to thedefendant L&L Associates Holding Corp., also known as Associates (2/02) Holding Corp.(hereinafter L&L), a tax lien on certain commercial real property owned by the plaintiff. InNovember 2003, L&L sent a notice to redeem by certified mail, return receipt requested, to, interalia, the plaintiff at the address on record with the County Treasurer and the defendant Town ofHempstead Receiver of Taxes (hereinafter the Town Receiver), to the plaintiff at the subjectproperty, and to the "Tenants in Possession" at the subject property. The two notices sent to thesubject property were returned unclaimed after several attempts at delivery. By deed dated May12, 2004, the County Treasurer conveyed the subject property to L&L.[*2]
The plaintiff commenced this action seeking, inter alia, ajudgment declaring that the deed is null and void due to inadequate notice of the tax lien sale bythe County Treasurer and the notice to redeem by L&L. The plaintiff also alleged causes ofaction to recover damages for the loss of her property and, in the event that it was determinedthat the property was properly conveyed to L&L, a cause of action alleging unjust enrichment, torecover property taxes and maintenance fees she continued to pay after the property wasconveyed to L&L. L&L moved for summary judgment dismissing the complaint insofar asasserted against it. The Supreme Court granted the motion. We modify.
The plaintiff's cause of action to recover damages for injury to property was brought beyondthe three-year statute of limitations (see CPLR 214 [4]; Hanbidge v Hunt, 183AD2d 700, 702 [1992]), and, therefore, the Supreme Court properly granted that branch of L&L'smotion which was for summary judgment dismissing that cause of action insofar as assertedagainst it.
However, the Supreme Court erred in granting those branches of L&L's motion which werefor summary judgment dismissing the remaining causes of action. L&L established, prima facie,that it satisfied the notice requirements of Nassau County Administrative Code (hereinafter theNCAC) § 5-51.0 and the due process rights of the plaintiff by furnishing constitutionallyadequate notice of her right to redeem the property (see Matter of Harner v County of Tioga, 5 NY3d 136, 140-141[2005]; Kennedy v Mossafa, 100 NY2d 1, 9-11 [2003]; Temple Bnai Shalom of Great Neck vVillage of Great Neck Estates, 32 AD3d 391, 392-393 [2006]), and that the CountyTreasurer complied with the notice requirements of the NCAC (see NCAC §5-54.0 [b]). However, L&L failed to make a prima facie showing that the County Treasurercomplied with constitutional standards of due process in serving the plaintiff with notice of thetax lien sale to L&L. Insofar as developed, the record contains no indication as to what steps theCounty Treasurer took in notifying the plaintiff of the tax lien sale (cf. Matter of McCann vScaduto, 71 NY2d 164, 177-178 [1987]; Muzio v Alfano-Hardy, 73 AD3d 1144 [2010]; Meadow FarmRealty Corp. v Pekich, 251 AD2d 634, 635-636 [1998]). Accordingly, that branch of L&L'smotion which was for summary judgment dismissing the cause of action for a judgment declaringthat the deed executed by the County Treasurer conveying the subject property to L&L is null andvoid insofar as asserted against it should have been denied as premature, with leave to renewupon completion of discovery (see 89Pine Hollow Rd. Realty Corp. v American Tax Fund, Foothill, 41 AD3d 771, 773-774[2007]).
The Supreme Court also erred in granting that branch of L&L's motion which was forsummary judgment dismissing the plaintiff's alternative cause of action alleging unjustenrichment insofar as asserted against it to recover the payment of property taxes andmaintenance fees made by the plaintiff after the property was conveyed to L&L. "To prevail on aclaim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at thatparty's expense, and (3) that it is against equity and good conscience to permit the other party toretain what is sought to be recovered" (Old Republic Natl. Tit. Ins. Co. v Luft, 52 AD3d 491, 491-492[2008]). "Generally, courts will look to see if a benefit has been conferred on the defendant undermistake of fact or law, if the benefit still remains with the defendant, if there has been otherwisea change of position by the defendant, and whether the defendant's conduct was tortious orfraudulent" (Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421[1972], cert denied 414 US 829 [1973]). Here, in opposition to L&L's prima facieshowing that it was not unjustly enriched at the expense of the plaintiff, the plaintiff raised atriable issue of fact as to whether it would be against equity and good conscience to permit L&Lto retain a benefit conferred on L&L under mistake of fact or law (cf. Clark v Daby, 300AD2d 732, 732-733 [2002]). Accordingly, that branch of L&L's motion which was for summaryjudgment dismissing the cause of action for unjust enrichment insofar as asserted against itshould also have been denied as premature, with leave to renew upon completion of discovery.Dillon, J.P., Balkin, Belen and Sgroi, JJ., concur.