State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 521794 

________________________________

LAKESIDE REALTY LLC, 

Appellant,

v MEMORANDUM AND ORDER

COUNTY OF SULLIVAN et al.,

Respondents.

________________________________

Calendar Date: April 26, 2016

Before: Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.

__________

Stoloff & Silver LLP, Monticello (Gary D. Silver of

counsel), for appellant.

Samuel S. Yagur, County Attorney, Monticello (Thomas J.

Cawley of counsel), for County of Sullivan and another,

respondents.

Terence D. Watson, Fidelity National Law Group, New York

City, for Kuplen Properties, LLC, respondent.

__________

Mulvey, J.

Appeal from an order of the Supreme Court (Schick, J.),

entered January 27, 2015 in Sullivan County, which granted a

motion by defendant County of Sullivan for summary judgment

dismissing the complaint. 

In 2001, plaintiff, a New York limited liability company,

purchased two parcels of vacant property identified as parcel

Nos. 8-1-10.2 and 8-1-21.2 in the Town of Liberty, Sullivan

County. After plaintiff failed to pay its taxes on the parcels

for two years, defendant County of Sullivan commenced a tax
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foreclosure proceeding pursuant to RPTL article 11.

The County mailed by certified and ordinary first class

mail a copy of the petition and notice of foreclosure, the

personal notice of foreclosure and list of properties to

plaintiff at two addresses: "5 E 37th Street New York, NY 10016"

and "21 E 40th St. Fl. 12 New York, NY 10016" – the first of

which was obtained from plaintiff's deed and 2001 note and

mortgage, and the second secured from a 2005 mortgage

modification agreement, tax bills and tax roll. All the mailings

were returned to the County as undeliverable; however,

handwriting on the envelope for the certified mail to the 21 East

40th Street address read "FWD 286 Madison NYC 10017." The County

then mailed the pleadings by ordinary first class mail and

certified mail to plaintiff at "286 Madison New York, NY 10017"

and also to "286 Madison New York, NY 10011."1 The certified

mailings to both 286 Madison zip code addresses were returned to

the County with a United States Postal Service (hereinafter USPS)

stamp: "Returned To Sender Moved, Left No Address NY, NY 10017-

9998." Notably, the ordinary first class mailings to both 286

Madison zip code addresses were not returned.

Thereafter, the County posted a copy of the petition and

notice of foreclosure at the County Treasurer's office, County

Clerk's office and County government center lobby and published

the same in two official newspapers for a total of six times. 

Although not required by statute, the County also posted a copy

of personal notice of commencement of foreclosure proceedings and

petition and notice of foreclosure at five post offices in the

County.

When plaintiff failed to appear or contest the foreclosure

proceeding, County Court (McGuire, J.) granted the County a

default judgment, which was entered in April 2011, and, in

furtherance thereof, the County recorded a deed in April 2011

transferring the subject parcels to it. In July 2011, the County

1 There was some uncertainty about the zip code for the 286

Madison address, so mailings were sent to two different zip

codes. 
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sold the parcels to defendant Kuplen Properties, LLC. In

September 2012, plaintiff commenced this action against the

County and Ira Cohen, the Sullivan County Treasurer (hereinafter

collectively referred to as the County), as well as against

Kuplen, seeking, among other things, vacatur of the default

judgment and a declaration that the foreclosure proceeding and

the deed from the County to Kuplen were null and void. Kuplen

asserted a cross claim against the County for indemnification. 

After joinder of issue and discovery, the County and Kuplen each

moved for summary judgment dismissing the complaint. Supreme

Court (Schick, J.) granted the County's motion and dismissed the

complaint as time-barred.2 Plaintiff appeals.

Plaintiff argues that its action is not time-barred since

the one-month limitations period set forth in RPTL 1131 was never

triggered given the County's failure to comply with the notice

requirements of RPTL 1125 thereby violating plaintiff's due

process rights. We disagree. Initially, "[a] tax debtor's

motion to reopen a default judgment of tax foreclosure 'may not

be brought later than one month after entry of the judgment'"

(Matter of County of Clinton [Bouchard], 29 AD3d 79, 81 [2006],

quoting RPTL 1131; see Matter of County of Otsego [Force], 128

AD3d 1165, 1166 [2015]). Such time period is applicable "even

where, as here, the property owner asserts that he or she was not

[properly] notified of the foreclosure proceeding" (Matter of

County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d 1206, 1207

[2014] [internal quotation marks and citations omitted]; see

Matter of County of Sullivan [Dunne—Town of Bethel], 111 AD3d

1232, 1234 [2013]). The debtor has "the burden of affirmatively

establishing a jurisdictional defect or invalidity in . . . the

foreclosure proceedings" because such proceedings are cloaked

with a presumption of regularity (Kennedy v Mossafa, 100 NY2d 1,

2 The order does not explicitly rule on Kuplen's motion

but, after granting the County's motion, the court states that

"[a]ll other claims and actions have been considered and found

wanting," thus implicitly dismissing the complaint against

Kuplen. In fact, Kuplen appeared as a respondent on this appeal

and, in its brief, considers the complaint dismissed as against

it.
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8 [2003]; see RPTL 1134; Matter of County of Sullivan

[Matejkowski], 105 AD3d 1170, 1171 [2013], appeal dismissed 21

NY3d 1062 [2013]). 

In a tax foreclosure proceeding, "[d]ue process does not

require actual notice by the property owner, only reasonable

efforts to provide notice under the circumstances" (Matter of

County of Sullivan [Fay], 79 AD3d 1409, 1411 [2010], lv dismissed

17 NY3d 787 [2011] [citation omitted]; see MacNaughton v Warren

County, 20 NY3d 252, 255 [2012]; Matter of County of Sullivan

[Dunne—Town of Bethel], 111 AD3d at 1235). "Whether there has

been compliance with the flexible concept of due process turns on

a 'case-by-case analysis that measures the reasonableness of a

municipality's actions in seeking to provide adequate notice'"

(Matter of County of Broome, 50 AD3d 1300, 1302 [2008], quoting

Matter of Harner v County of Tioga, 5 NY3d 136, 140 [2005]). Due

process is satisfied where "notice is reasonably calculated,

under all the circumstances, to apprise interested parties of the

pendency of the [foreclosure] proceeding and afford them an

opportunity to present their objections" (Matter of County of

Clinton [Greenpoint Assets, Ltd.], 116 AD3d at 1208 [internal

quotation marks, brackets and citations omitted]; see Jones v

Flowers, 547 US 220, 235-236 [2006]). 

To that end, each property owner is entitled to personal

notice of the tax foreclosure proceeding, which is to be sent by

both ordinary first class mail and by certified mail to the

address contained in the public record (see RPTL 1125 [1] [a],

[b] [i]). The notice sent by mail "shall be deemed received

unless both the certified mailing and the ordinary first class

mailing are returned by the [USPS] within [45] days after being

mailed" (Matter of County of Sullivan [Matejkowski], 105 AD3d at

1171 [internal quotation marks and citation omitted; emphasis

added]). "[W]here one of the notices is not returned within the

requisite period, [the County] is not obligated to take

additional steps to notify [the tax debtor] of the foreclosure

proceeding" (Matter of County of Clinton [Greenpoint Assets,

Ltd.], 116 AD3d at 1207 [internal quotation marks and citations

omitted]; see Matter of County of Sullivan [Dunne—Town of

Bethel], 111 AD3d at 1234-1235). Only where both the regular and

certified mailings are returned by the USPS is a county required
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to "attempt to obtain an alternative mailing address from the

. . . [USPS]" and, if such address is found, the notice must be

mailed to that address "both by certified mail and by ordinary

first class mail" (RPTL 1125 [1] [b] [i], [ii] [emphasis added]). 

Here, the County mailed the pleadings by ordinary first

class mail and certified mail to the addresses that it found in

the public record (see RPTL 1125 [1] [a], [e]) and, when one of

the mailings was returned by the USPS with a forwarding notation,

the County remailed the pleadings by ordinary first class mail

and certified mail to the noted address: "286 Madison." The

certified mailings were returned but the ordinary first class

mailings were not returned. Plaintiff admits that "286 Madison

Avenue, 12th Floor, New York, New York 10017" is its "correct"

mailing address. Furthermore, the County had contacted the USPS

and received a response that there was no change of address on

file for the "5 E. 37th Street" address. Plaintiff complains

that the County did not contact the USPS with respect to the "21

E. 40th St." address as it had done for the "5 E. 37th Street"

address. However, the County had already obtained an alternative

address of 286 Madison via the handwritten notation on the

returned certified mail to the "21 E. 40th St." address. 

Plaintiff further complains that the posting was

insufficient since the notices were only posted on the parcel

with road frontage.3 We find this argument unpersuasive (see

Matter of County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d

at 1206). Only if no alternative address can be found is a

county required to post the notice at the property itself, which

may be accomplished by attaching the notice "to a vertical

object, such as a tree, post or stake, and plainly visible from

the road" (RPTL 1125 [1] [b] [iii]; [c]; see Matter of County of

Clinton [Greenpoint Assets, Ltd.], 116 AD3d at 1206, 1208; Matter

3 Parcel No. 8-1-10.2 is bisected by the public highway and

parcel No. 8-1-21.2 is adjacent to parcel No. 8-1-10.2, but

parcel No. 8-1-21.2 does not front on the public highway. The

utility pole is on parcel No. 8-1-10.2. It is unclear from the

record whether the pole is on the same side of the highway as

parcel No. 8-1-21.2.
-6- 521794 

of County of Sullivan [Fay], 79 AD3d at 1411). Even though not

required by the statute, since the ordinary first class mail to

the 286 Madison address was not returned, the County posted two

copies of the petition and notice of foreclosure on a utility

pole adjacent to the public highway on one of the parcels (see

RPTL 1125 [1] [b] [iii]). The record shows that the County

undertook a concerted effort to comply with statutory and due

process requirements, including posting two notices (one for each

parcel) on a utility pole on the parcel with road frontage.

Plaintiff also argues that, because it is a domestic

business entity, due process principles required the County to

also search the Department of State's website, which would have

revealed the valid and active address of plaintiff's agent to

whom the County should have mailed the notices (see Limited

Liability Company Law § 203 [e] [4]). There appears to be no

binding authority for this proposition. To the contrary, it has

been held and reaffirmed that "[a] reasonable search of the

public record" for due process purposes "does not necessarily

require searching the Internet" (Kennedy v Mossafa, 100 NY2d at

10; see MacNaughton v Warren County, 20 NY3d at 257; Matter of

County of Schuyler [Solomon Fin. Ctr., Inc.], 83 AD3d 1243, 1245

[2011], lv dismissed 17 NY3d 850 [2011]). We hold that the

County fulfilled its responsibility to provide adequate notice to

plaintiff.

As relevant to both the statutory and due process

inquiries, ownership carries responsibilities, which include an

obligation to inform the tax enforcer of a change in address, and

a failure to do so may be taken into account by courts when

evaluating the adequacy of notice (see RPTL 1125 [1] [d]; Matter

of Harner v County of Tioga, 5 NY3d at 141; Matter of County of

Sullivan [Dunne—Town of Bethel], 111 AD3d at 1235; MacNaughton v

Warren County, 89 AD3d 1269, 1271 [2011], affd 20 NY3d 252

[2012]). Here, plaintiff allowed several years to pass without

paying property taxes or having any contact with the County and,

in light of its admitted tax delinquency, plaintiff should have

known that the County would attempt to collect the taxes owed to

it. 
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The County fully complied with the notice requirements of

RPTL article 11, and due process does not require the County to

go to lengths beyond its inquiry into the public record, mailing

by both ordinary first class mail and certified mail, inquiry and

appropriate response to information received from the USPS,

remailing the pleadings as indicated, and the publication and

posting measures taken here (see Matter of County of Schuyler

[Solomon Fin. Ctr., Inc.], 83 AD3d at 1246; Matter of County of

Sullivan [Fay], 79 AD3d at 1411). In summary, we find that the

County adequately complied with the statutory notice requirements

of RPTL article 11 and it satisfied due process requirements. 

Accordingly, as plaintiff failed to comply with the one-month

statute of limitations period, Supreme Court properly dismissed

the complaint as untimely. We have examined plaintiff's other

contentions and find them to be without merit. 

Peters, P.J., Lahtinen, Egan Jr. and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court