Harner v. County of Tioga

• Decision Date: 30 June 2005
• Citation: 5 N.Y.3d 136,833 N.E.2d 255
• Parties: In the Matter of Donald HARNER, Respondent, v. COUNTY OF TIOGA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 255

833 N.E.2d 255

5 N.Y.3d 136

In the Matter of Donald HARNER, Respondent, v. COUNTY OF TIOGA, Appellant.

Court of Appeals of New York.

June 30, 2005.

Levene Gouldin & Thompson, LLP, Binghamton (Jason M. Carlton of counsel), for appellant.

Holmberg, Galbraith, Van Houten & Miller, Ithaca (Dirk A. Galbraith of counsel), for respondent.

OPINION OF THE COURT

CIPARICK, J.

Once again we consider whether a county provided a property owner constitutionally adequate notice of a foreclosure proceeding upon a tax delinquency. Applying the test set forth in Kennedy v. Mossafa, 100 N.Y.2d 1, 759 N.Y.S.2d 429, 789 N.E.2d 607 [2003], we conclude that due process was satisfied in this case where the notices of foreclosure sent by certified mail pursuant to RPTL 1125(1)(a)¹ were returned "unclaimed," but the ordinary mailings were not, and the County took no steps to obtain an alternative address.

In 1982, petitioner Donald Harner purchased the property at issue, a single family residence located at 34 West Tioga Street, Town of Spencer, Tioga County. Approximately eight years later, in 1990, Harner agreed to convey the subject property to George and Glenda Winnie by land contract, which obligated the Winnies to pay all real property taxes and assessments levied on the premises. Harner remained owner of record on the relevant tax rolls of the Town of Spencer.

In 1993, the tax rolls demonstrated that Harner's mailing address for purposes of the subject property was 105 Auburn Road, Town of Lansing, Tompkins County. In 1994, the tax rolls were amended to change his address to "Harner, Donald, c/o Glenda Winnie, 34 West Tioga St, PO Box 505, Spencer, N.Y. 14883." Both Harner and Mrs. Winnie deny requesting this address change. However, as it appeared in the tax rolls, the County of Tioga subsequently mailed all tax bills and notices regarding the property to the Town of Spencer address.

In 1996 and again in 1998, the County commenced tax foreclosure proceedings against the subject property sending all notices to Harner care of the Winnies at 34 West Tioga Street, Spencer, New York. While Harner denies knowledge of those proceedings, the property was redeemed on both occasions.² In December 2002, the County instituted a third tax foreclosure proceeding. The County mailed notice, by certified mail, and ordinary first class mail to Harner at the Spencer address, which appeared on the tax rolls. In addition, the County published notice of the foreclosure proceeding in a local newspaper and posted notice in the Tioga County Courthouse and the offices of the County Clerk and County Treasurer (see RPTL 1124).

The County later amended its petition and notice of foreclosure, and similarly mailed the amended notice by both certified and first class mail. It also published and posted public notices. Eventually however, the post office returned both certified mailings of the original notice and the amended notice, each stamped with the notation "unclaimed." The County mailed another copy of the amended petition as well as subsequent notices regarding the foreclosure to the Town of Spencer address via first class mail. The first class mailings were never returned to the County.

In May 2003, upon the failure of anyone to redeem the property, the County acquired title to the premises. Thereafter, Harner commenced this CPLR article 78 proceeding for a judgment setting aside the tax deed and declaring him the owner of the property with the right to redeem it. Supreme Court dismissed the petition on the ground that the County satisfied the notice requirements of RPTL 1125 and due process. The Appellate Division reversed, on the law, and granted the petition holding that the notice failed to satisfy due process requirements. By analogy to returned mail that is marked "undeliverable," the Court reasoned that the "unclaimed" notation on the certified mailings alerted the County to the possibility of inadequate notice and thereby required it to conduct a reasonable search of the public record beyond the relevant tax rolls. We granted leave, and now reverse.

Under both the federal and state constitutions, the State may not deprive a person of property without due process of law (U.S. Const. 14th Amend.; NY Const., art. I, § 6). It is well settled that the requirements of due process are satisfied where "notice [is] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 [1950]; see also Kennedy v. Mossafa, 100 N.Y.2d 1, 9, 759 N.Y.S.2d 429, 789 N.E.2d 607 [2003]). Due process is a flexible concept, requiring a case-by-case analysis that measures the reasonableness of a municipality's actions in seeking to provide adequate notice. A balance must be struck between the State's interest in collecting delinquent property taxes and those of the property owner in receiving notice (see Kennedy, 100 N.Y.2d at 9, 759 N.Y.S.2d 429, 789 N.E.2d 607; see also Matter of Zaccaro v. Cahill, 100 N.Y.2d 884, 890, 768 N.Y.S.2d 730, 800 N.E.2d 1096 [2003]). In striking such balance, the courts may take "into account the status and conduct of the owner in determining whether notice was reasonable" (Kennedy, 100 N.Y.2d at 11, 759 N.Y.S.2d 429, 789 N.E.2d 607, citing Matter of ISCA Enters. v. City of New York, 77 N.Y.2d 688, 700, 77 N.Y.2d 688, 572 N.E.2d 610 [1991]).

Applying these principles, we recently held that notice in a tax foreclosure proceeding was sufficient where the county mailed notice to the address on the tax roll but did not search the public record after the notice was returned as "`not deliverable as addressed unable to forward'" (Kennedy, 100 N.Y.2d at 5, 759 N.Y.S.2d 429, 789 N.E.2d 607). We recognized that generally the municipality should conduct a...