| Matter of Limitone Enters., Inc. v Walker |
| 2013 NY Slip Op 00094 [102 AD3d 697] |
| January 9, 2013 |
| Appellate Division, Second Department |
| In the Matter of Limitone Enterprises, Inc., et al.,Appellants, v Maureen Walker et al., Respondents. |
—[*1] Nichelle A. Johnson, Corporation Counsel, Mount Vernon, N.Y. (Joana H. Aggreyof counsel), for respondents.
In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondents torescind and annul the sale of certain real property sold pursuant to a judgment offoreclosure and sale dated September 20, 2010, and entered, upon default, in a related inrem tax lien foreclosure proceeding entitled In the Matter of Foreclosure of Tax LiensPursuant to Chapter 783 of the Laws of 1974 and Article Eleven, Title Three of the RealProperty Tax Law, by the City of Mount Vernon, New York—List of DelinquentTaxes as of November 17, 2009, Consisting of One Volume, commenced in theSupreme Court, Westchester County, under index No. 27155/09, the petitioners appeal,as limited by their brief, from so much of an order and judgment (one paper) of theSupreme Court, Westchester County (Walker, J.), entered July 7, 2011, as, in effect,denied the petition on the merits and dismissed the proceeding.
Ordered that the order and judgment is modified, on the law, by deleting theprovision thereof, in effect, denying the petition on the merits, and substituting therefor aprovision dismissing the petition without prejudice to the petitioners seeking appropriaterelief in the related in rem tax lien foreclosure proceeding if they be so advised; as somodified, the order and judgment is affirmed insofar as appealed from, with costs to therespondents.
The petitioners commenced this proceeding pursuant to CPLR article 78, inter alia,to compel the respondents to rescind and annul the sale of certain real property soldpursuant to a judgment of foreclosure and sale dated September 20, 2010, and entered,upon default, in a related in rem tax lien foreclosure proceeding entitled In the Matterof Foreclosure of Tax Liens Pursuant to Chapter 783 of the Laws of 1974 and ArticleEleven, Title Three of the Real Property Tax Law, by the City of Mount Vernon, NewYork—List of Delinquent Taxes as of November 17, 2009, Consisting of OneVolume, commenced in the Supreme Court, Westchester County, under index No.27155/09 (hereinafter the judgment). This relief should have been pursued by way of amotion to vacate the judgment, insofar as it affected the petitioners, pursuant to CPLR317 or CPLR 5015 (a) in the in rem tax lien foreclosure proceeding (see Egloff v Town ofLewisboro, 89 AD3d 792, 793 [2011]; Matter of Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 83AD3d 1060, 1061 [2011]; Babu v 29 Cortlandt St. Realty Corp., 289 AD2d273 [2001]). Since the petitioners have improperly sought to collaterally attack thejudgment by way of this proceeding pursuant to CPLR article 78, the Supreme [*2]Court should have dismissed the petition without making adetermination of the petition on the merits (see CPLR 7804 [g]; Matter ofCalabrese Bakeries, Inc. v Rockland Bakery, Inc., 83 AD3d at 1061; cf. Matter of Leone v Board ofAssessors, 100 AD3d 635 [2012]).
In light of the foregoing, we need not reach the parties' remaining contentions.Dillon, J.P., Chambers, Sgroi and Miller, JJ., concur.