Solomon v. City of New York, Dept. of General Services, Div. of Real Property
| Decision Date | 28 June 1983 |
| Citation | 464 N.Y.S.2d 160,94 A.D.2d 283 |
| Parties | Charles SOLOMON, Plaintiff-Respondent, v. The CITY OF NEW YORK, DEPARTMENT OF GENERAL SERVICES, DIVISION OF REAL PROPERTY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Regina Feder, Asst. Corp. Counsel, New York City, of counsel (Leonard Olarsch, Asst. Corp. Counsel, New York City, with her on brief, Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, attorney), for defendant-appellant.
Harry Grossman, New York City, for plaintiff-respondent.
Before KUPFERMAN, J.P., and SANDLER, ROSS, ASCH and ALEXANDER, JJ.
Plaintiff was the owner of 115-121 East 12th Street in Manhattan. No real estate taxes had been paid on the property since 1970 or 1971 and plaintiff was the only owner of the property for these years. New York City acquired title through in rem tax proceedings May 25, 1978 by a foreclosure judgment (Administrative Code Sec. D17-12.0).
Plaintiff could have recovered his property but he failed to obtain its mandatory release because he did not act within four months of the acquisition by the City (Sec. D17-25.0). Section D17-25.0(g) moreover provides an additional 20 months during which the former property owner may apply for discretionary relief from the acquisition by the City.
The plaintiff proceeded under subsection (g). The matter was submitted to the Board of Estimate, in whose discretion the determination of whether to grant the release is placed. The Board denied the application.
A transcript of the proceedings before the Board of Estimate at the meeting which turned down relief showed that the plaintiff had a number of parcels, all tax-delinquent. The parcel involved here had a deficiency of $227,655 at the time. Another on 57th Street had $400,000 (not foreclosed as of then), and a third in Brooklyn, $7,000. The Mayor's assistant made a statement that there was no demonstration of the plaintiff's willingness to become current on his taxes. The taxpayer had not made any written agreement to that effect. It should be noted that the East 12th Street property herein was assessed for $180,000, and had a nine-year delinquency at that time.
After the above rejection of relief by the Board of Estimate, no action was taken by the plaintiff, and some 20 to 21 months later the 12th Street property was scheduled for public auction on July 1, 1981. A minimum upset price for the property of $360,000 was set. In June of 1981, the plaintiff was advised of the sale.
On June 25, 1981, plaintiff commenced the instant action by an order to show cause to enjoin the City from selling the property at public auction, which injunction was granted by order entered June 30, 1981 (Price, J.). A summons and complaint was served with the order to show cause. It alleges that the Board of Estimate, without apparent reason, unlawfully denied release of the City's interest in the subject property, despite plaintiff not having named the Board of Estimate as a defendant.
The City then cross-moved on August 3, 1981 to dismiss the complaint on the ground that an Article 78 proceeding, already time-barred, was the proper remedy rather than a declaratory judgment action, and for failure to state a cause of action. The Court below issued a decision dated August 25, 1981 (Price, J.), which (a) granted plaintiff's motion for an order restraining the City's auction of the subject property, (b) stated that the Board of Estimate's denial of reconveyance was an abuse of discretion, and (c) granted plaintiff's motion for an order compelling defendant to release its interest in the subject premises. Although this decision appears to grant plaintiff's demand in its entirety, an order dated September 17, 1981 (Price, J.) was issued pursuant to this decision which is not consistent on all points. This order merely recites that (1) plaintiff's motion for preliminary injunction of the sale is granted, (2) the City's motion to dismiss is denied, and (3) defendants were given 10 days to interpose an answer to the complaint. Moreover, another short-form order, dated October 28, 1981 and entered October 30, 1981 (Price, J.), was thereafter issued by the same Court and addressed to the same motion to dismiss, which repeated the Court's denial of the motion to dismiss for insufficiency because it found a valid claim had been set forth. The City filed a Notice of Appeal therefrom.
The City moved for summary judgment rather than perfecting that appeal. It was anticipated that determination of this motion would resolve the matter for appeal, either in the City's favor or for plaintiff. This motion urged that despite plaintiff having been found to have presented a proper case for the Court to make a declaratory judgment, the Article 78 statute of limitations should nevertheless apply to bar the action; and, since there were no disputed material questions of fact before the Court and the only issue remaining was the legality of the Board of Estimate's denial of the application for release, as a matter of law the denial was within the Board's statutory discretion and thus was proper and lawful.
Summary judgment was denied by order entered August 11, 1982 (Price, J.). Instead of making a determination on the merits, based on whether the record proof established either petitioner's claim or the City's defense as a matter of law, Special Term treated this as a motion for reargument of the earlier motion to dismiss for insufficiency and denied it because it found the City had failed to present any additional facts beyond those already presented in the prior motions
This determination by Special Term was in error.
Prior to enactment of § D17-25.0 in 1956, there was no provision for the release of a property after acquisition by way of tax lien foreclosure (City of New York v. Nelson, 309 N.Y. 94, 127 N.E.2d 827, aff'd, 352 U.S. 103, 77 S.Ct. 195, 1 L.Ed.2d 171). The Court of Appeals upheld this deficiency, but...
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