89 Pine Hollow Road Realty Corp. v. American Tax Fund, Foothill, 2006-03279.

• Decision Date: 26 June 2007
• Docket Number: 2006-03279.
• Citation: 2007 NY Slip Op 05682,41 A.D.3d 771,840 N.Y.S.2d 85
• Parties: 89 PINE HOLLOW ROAD REALTY CORP., et al., Appellants, v. AMERICAN TAX FUND, FOOTHILL, et al., Defendants, and AFAFB, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

41 A.D.3d 771

840 N.Y.S.2d 85

2007 NY Slip Op 05682

89 PINE HOLLOW ROAD REALTY CORP., et al., Appellants, v. AMERICAN TAX FUND, FOOTHILL, et al., Defendants, and AFAFB, INC., Respondent.

2006-03279.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided June 26, 2007.

In an action to set aside a deed issued in a tax lien foreclosure proceeding, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), dated March 30, 2006, as, upon reargument, adhered to its determination in an order dated September 28,

2005, granting the motion of the defendant AFAFB, Inc., for summary judgment dismissing the complaint insofar as asserted against it and cancelling a notice of pendency.

Ordered that the order dated March 30, 2006 is reversed insofar as appealed from, on the law, with costs, and, upon reargument, the order dated September 28, 2005, granting the motion of the defendant AFAFB, Inc., for summary judgment dismissing the complaint insofar as asserted against it and cancelling the notice of pendency is vacated, and the motion of the defendant AFAFB, Inc., for summary judgment dismissing the complaint insofar as asserted against it and cancelling the notice of pendency is denied as premature.

The plaintiff 89 Pine Hollow Road Realty Corp. (hereinafter the Corporation) was the owner of real property located in Oyster Bay. The decedent, Frank Pettineo, was the Corporation's sole shareholder until his death on November 11, 2002.

In or about July 2000 the Nassau County Treasurer (hereinafter the County Treasurer) notified the Corporation that taxes for the subject property were overdue, and additional notices were sent to the Corporation in October 2000 and October 2001. The validity and effectiveness of these notices are not challenged.

On or about February 20, 2001 the County Treasurer sold a tax lien on the subject property to the defendant American Tax Fund, Foothill (hereinafter ATF), at public auction. The tax lien certificate stated that the sale was "held pursuant to the provisions of the Nassau County Administrative Code." Prior to the sale, the County Treasurer was required, pursuant to Nassau County Administrative Code (hereinafter NCAC) § 5-37.0 (d) (L 1939, chs 272, 701-709, as amended) to "cause notice of such tax lien to be sent by first class mail to the name and address of the record owner or occupant and mortgagee, as shown on the assessment records or on the records kept by the receiver of taxes for the town or city in which the property is located, of each tax lien to be sold." The plaintiffs do not suggest that this statutory requirement was not duly fulfilled by the County Treasurer.

At any time after the expiration of 21 months from the date of the sale of the tax lien, ATF, as the lienholder, had the right to notify the Corporation of its intent to accept conveyance of the subject property from the County Treasurer (see NCAC §§ 5-51.0, 5-53.0). The notice had to include, inter alia, a date certain on or after which conveyance of the subject property could take place, which date could not be less than three months from the day of service or filing of the notice, whichever was later (see NCAC § 5-51.0 [b] [4]). Insofar as relevant to this appeal, service of the notice could validly be made by certified mail, postage paid, return receipt requested, and "[t]he receipt of the postmaster for such certified mail and the return card by the post office and the affidavit of the person mailing it, setting forth the means by which the last known address was ascertained, shall be sufficient evidence of the service of the notice" (NCAC § 5-51.0 [c]).

Here, the notice in question was sent to the Corporation by ATF's agent, the defendant GKB...