Behar v. Wiblishauser

• Decision Date: 17 October 2012
• Citation: 953 N.Y.S.2d 51,2012 N.Y. Slip Op. 06907,99 A.D.3d 838
• Parties: Edward J. BEHAR, et al., respondents, v. Michael WIBLISHAUSER, et al., appellants.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 838

953 N.Y.S.2d 51

2012 N.Y. Slip Op. 06907

Edward J. BEHAR, et al., respondents,

v.Michael WIBLISHAUSER, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 17, 2012.

Germano & Cahill, P.C., Holbrook, N.Y. (Doris B. Bilotti of counsel), for appellants.

Donald Leo & Associates, P.C., Islandia, N.Y. (John F. Clennan of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action pursuant to RPAPL article 15 to compel the determination of claims to real property and for injunctive relief, the defendants appeal from (1) an order of the Supreme Court, Suffolk County (Rebolini, J.), dated March 1, 2011, which granted the plaintiffs' motion for summary judgment on the complaint and in connection with the counterclaims, and (2) a judgment of the same court dated November 9, 2011, which, upon the order, inter alia, directed the defendants to remove the portion of an asphalt driveway and Belgian block curbingwhich encroaches on the plaintiffs' property.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the plaintiffs' motion for summary judgment on the complaint and in connection with the counterclaims is denied, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

The plaintiffs and the defendants own adjoining parcels of residential property in Suffolk County. At issue is a three-foot-wide strip of the defendants' driveway which encroaches onto the plaintiffs' property. The defendants purchased their property in 2006 from owners who had held title to the property since 1979. The plaintiffs purchased their parcel in 2008. One of the previous owners of the plaintiffs' property was Elizabeth Scifo. Scifo defaulted in the payment of her real estate taxes for the tax year 1997/1998 and, in December 1998, the Suffolk County Treasurer sold the property “at public auction” (a tax sale) to the County of Suffolk. By tax deed dated February 6, 2003, and recorded on February 11, 2003 (hereinafter the tax deed), the Suffolk County Treasurer conveyed the property to the County of Suffolk. In 2004 Scifo made an application to reacquire her property pursuant to Local Law No. 16–1976 of the County of Suffolk (hereinafter LL No. 16–1976), in exchange for the payment of her delinquent real estate tax bill, plus “all other taxes, penalties, interest, and any other charges due the County.” The Suffolk County Legislature resolution which authorized said sale stated it was a “deed transfer by redemption process ” (emphasis added). By quitclaim deed dated May 10, 2004, and recorded on May 24, 2004 (hereinafter the 2004 deed), the County conveyed the property to Scifo pursuant to the resolution, “SUBJECT to all covenants, restrictions and easements of record, if any.”

Soon after the plaintiffs purchased the property, they commenced this action for a judgment declaring that a three-foot-wide strip of the defendants' asphalt driveway and curbing encroached onto their property and for an injunction requiring the defendants to remove the encroachment. In their answer, the defendants alleged that the driveway had existed in its current condition for more than ten years, and that they and their predecessors-in-interest had used the driveway on a daily basis since 1979. The defendants also counterclaimed for a judgment declaring that they had a prescriptive easement over the portion of the driveway that encroached upon plaintiffs' property, and to enjoin the plaintiffs from interfering with their use of the prescriptive easement.

The plaintiffs moved for summary judgment on the complaint and in connection with the counterclaims, arguing that the defendants' claim to a prescriptive easement was extinguished by the tax sale and deed conveyance to Suffolk County in 2003.

The Supreme Court granted the motion for summary judgment, determining that the alleged prescriptive easement did not survive the tax sale and deed conveyance in 2003; it reasoned that Scifo's deadline to “redeem” her property was December 2001, so that the conveyance of the property back to her in 2004 “was not a redemption.” The defendants appeal, and we reverse.

Suffolk County, in effect, provides for two different time periods wherein a property owner may re-acquire his or her property after it has been “lost” due to delinquent real estate taxes. Pursuant to the Suffolk County Tax Act (hereinafter the SCTA), the Suffolk County Treasurer may hold a tax sale by public auction to enforce unpaid real estate taxes ( see SCTA § 45). Suffolk County is empowered to purchase property sold at a tax sale ( see SCTA § 46). The owner, or anyone having an interest in property sold at a tax sale, may redeem the property within 36 months of the tax sale by paying the sum for which the property was purchased, along with interest and penalties, to the Suffolk County Treasurer ( see SCTA § 49[a] ). If the property is not redeemed within this 36–month period, the Suffolk County Treasurer conveys the property as an absolute estate in fee to the purchaser in the form of a tax deed ( see SCTA § 53).

However, Suffolk County also provides a somewhat unusual procedure that affords a property owner a second chance to re-acquire his or her property after a tax sale and deed conveyance. Under the prior version of the Suffolk County Administrative Code, which is applicable in this case, the property owner had nine months from the time the deed is recorded to apply for “redemption/release” of the property ( see Local Law No. 16–1976 of the County of Suffolk, §§ 1, 2). This redemption/release procedure applies only where, as here, the property has been acquired by Suffolk County pursuant to SCTA § 46.

Accordingly, and contrary to the plaintiffs' contention, delinquent tax property in Suffolk County cannot only be redeemed in the first 36 months after the tax sale. Indeed, the program by which Scifo reobtained her property is titled “Procedure for redemption of property under Suffolk County Tax Act” ( see SCAC § A42–3 [emphasis added] ). Moreover, in 2006, when the Suffolk County Legislature passed Local Law 39–2006 “to clarify and amend County Administrative Code provision pertaining to the implementation of County real property redemption procedures,” the law specifically stated that “this Legislature has previously recognized and reaffirmed on several occasions that former owners of property acquired by the County by tax sale should be entitled to an opportunity to reacquire those properties [by a redemption procedure].” In addition, both this Court and the Court of Appeals have referred to the process by which property is recovered under LL No....