Alliance Property Management & Development, Inc. v. Andrews Avenue Equities, Inc. , 518 N.Y.S.2d 804 ( 1987 )

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered March 6, 1987, which granted plaintiff-respondent’s motion for reargument of defendant-appellant’s motion to vacate the judgment of foreclosure and sale entered January 17, 1983, to dismiss the complaint, and to vacate respondent’s notice of pendency; and, which, upon reargument, denied appellant’s motion, affirmed, without costs.

In June 1980, respondent’s assignor, the Long Island Savings Bank, commenced a mortgage foreclosure action for the subject property located at 1950 Andrews Avenue in The Bronx. Appellant, named as a party defendant, served a notice of appearance and waiver. Thereafter, the bank assigned its interest to respondent which was substituted in this action.

On April 28, 1982, appellant commenced an in rem tax foreclosure proceeding against more than 5,000 parcels of real property in The Bronx, including the subject property. Although the mortgage foreclosure action in which appellant was a party was still pending, appellant gave respondent no notice that it had commenced an in rem tax proceeding. A judgment of foreclosure and sale was entered in respondent’s favor on January 17, 1983, and appellant did not appeal said judgment.

Respondent did not immediately attempt to sell the property because of the depressed real estate market in that area of The Bronx at that time. On July 10, 1984, a default judgment was entered in the tax foreclosure proceeding and appellant’s Commissioner of Finance then issued a deed conveying title to the property to appellant. In early 1986, respondent, still unaware of the tax foreclosure, began proceedings to sell the property through a court-appointed Referee by publishing the required notice of foreclosure. Several months later, in August 1986, appellant notified the Referee and respondent’s counsel of the in rem tax foreclosure which had "extinguished” respondent’s mortgage lien, and of the transfer of title to appellant.

Appellant, apparently unaware that it had already appeared in the mortgage foreclosure action, sought leave to intervene in that action, to vacate the judgment of foreclosure and to dismiss respondent’s complaint. Respondent initially defaulted and appellant’s motion was granted on default. However, respondent thereafter moved to reargue and, upon reargument, prevailed. The court rejected appellant’s claim to title in the subject property because the in rem tax foreclosure occurred subsequent to entry of respondent’s judgment of foreclosure and sale, and without notice to respondent. The court also found that appellant’s rights would not be prejudiced if the mortgage foreclosure sale were to go forward because the proceeds would be subject to the liens held by appellant.

Appellant maintains that respondent was barred from challenging the validity of the tax deed under section 11-412 (c) of the Administrative Code of the City of New York which confers a conclusive presumption of validity on such a deed two years after it has been recorded. Respondent, however, argues that this period of limitation cannot extinguish its claim because it was never given notice of the tax foreclosure proceeding even though appellant knew or should have known of respondent’s interest in the subject property. According to respondent, appellant was required, under the United States Supreme Court’s ruling in Mennonite Bd. of Missions v Adams (462 US 791 [1983]), to provide notice reasonably calculated to apprise respondent of the pending tax proceeding.

In Mennonite Bd. of Missions (supra), the United States Supreme Court invalidated an Indiana statute, which provided for notice of tax sales by publication only, as violative of a mortgagee’s Fourteenth Amendment right not to be deprived of its property without due process of law. Unlike Indiana, however, New York provides for notice by mail of an in rem tax foreclosure to interested parties who have filed owner’s registration cards with the designated officials (see, Real Property Tax Law § 1126; Administrative Code §§ 11-406, 11-416). The constitutionality of such a provision was not addressed in Mennonite Bd. of Missions.

The two appellate departments of this State which have addressed this question have reached different conclusions. In Matter of Foreclosure of Tax Liens by County of Erie (Manufacturers & Traders Trust Co.) (103 AD2d 636, 640 [1984]), the Fourth Department found New York’s notice scheme constitutionally inadequate because the State "has an obligation to all mortgagees, not merely those who request notice”. However, the Second Department recently upheld New York’s in rem notice provision as a reasonable balance between the State’s interest in collecting taxes, without the costly and time-consuming burden of conducting a title search to identify parties with an interest in the delinquent parcel, and the property rights of those parties (Matter of Tax Foreclosure No. 35, 127 AD2d 220 [Niehoff, J. P., 1987]).

In this case, however, we find no such countervailing governmental interest. While a governmental body is not required to undertake "extraordinary efforts to discover the identity and whereabouts of a mortgagee” (Mennonite Bd. of Missions v Adams, supra, at 799, n 4), no extraordinary efforts were required here to identify respondent. Appellant had actual notice of respondent’s interest, identity and whereabouts, because it was a party to respondent’s mortgage foreclosure action. Where a property owner’s identity and whereabouts are readily ascertainable, notice by publication is not sufficient. (Supra.)

The dissent maintains that appellant should not be bound by the "pro forma joining of the city in the mortgage foreclosure proceeding”. However, appellant elected to treat its appearance in that action in a "pro forma” manner, ignoring entry of the judgment of foreclosure and sale even though it knew, or should have known, that the delinquent taxes had not been paid during the pendency of that litigation. Indeed, the matter was treated so casually that appellant did not even know it had appeared in the action. We can see no reason why appellant’s decision to treat judicial process in this manner should outweigh respondent’s due process rights to adequate notice.

The Supreme Court has long held that "process which is a mere gesture is not due process” and that the means employed for giving notice "must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it” (Mullane v Central Hanover Trust Co., 339 US 306, 315 [1950]). In Schroeder v City of New York (371 US 208 [1962]), notice by publication was deemed inadequate to apprise a property owner of condemnation proceedings when her name and address were readily ascertainable from the deed record and tax rolls. The owner in that case was not barred from challenging the State’s action even after the three-year period of limitation had expired (supra, at 210). Consequently, respondent is not now barred from challenging this deed, obtained without adequate notice.

The court below was correct in denying the motion to vacate the judgment of foreclosure and sale. While we agree that appellant has failed to show that it will be prejudiced if the foreclosure sale goes forward, given that this sale is subject to appellant’s tax liens, we also find that appellant did not establish grounds warranting such relief under CPLR 5015 (a). Initially, appellant sought leave to intervene and to vacate the foreclosure judgment based on the mistaken belief that it had not been a party to the action and that the foreclosure judgment had been entered in 1986, two years after its tax deed was recorded. Subsequently, appellant conceded its error on both points. The foreclosure judgment had, in fact, been entered in 1983, one year before judgment was entered in the in rem tax proceeding and appellant’s deed was recorded. Inasmuch as appellant did not obtain title to the property until after judgment had been entered in the mortgage action, this claim cannot be considered "newly discovered evidence” which might have affected the outcome of the mortgage action. Appellant did not default in that action, having filed a notice of appearance and waiver, nor was there any misrepresentation or misconduct by the adverse party, and there is no basis for a jurisdictional challenge to the foreclosure judgment. Concur—Carro, Milonas, Rosenberger and Smith, JJ.