Congregation Yetev Lev D'Satmar, Inc. v. Sullivan County

• Decision Date: 12 July 1983
• Citation: 59 N.Y.2d 418,452 N.E.2d 1207,465 N.Y.S.2d 879
• Parties: , 452 N.E.2d 1207 CONGREGATION YETEV LEV D'SATMAR, INC., Respondent, v. COUNTY OF SULLIVAN et al., Appellants, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 879

465 N.Y.S.2d 879

59 N.Y.2d 418, 452 N.E.2d 1207

CONGREGATION YETEV LEV D'SATMAR, INC., Respondent, v. COUNTY OF SULLIVAN et al., Appellants, et al., Defendant.

Court of Appeals of New York.

July 12, 1983.

William C. Rosen, County Atty., Monticello (Alfred M. Gerstman, Monticello, of counsel), for Sullivan County and others, appellants.

Henri Shawn, Monticello, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

This is an action to determine claims to real property (RPAPL 1501 et seq.). The property in dispute consists of six acres of land improved with bungalows, wells and a heating system. It is located within the boundaries of a 21-acre parcel owned by plaintiff which is similarly improved and used for religious purposes. Plaintiff purchased the 21-acre parcel from White Lake Sanruth Corporation in 1971. The six-acre parcel was excepted from the property conveyed by the deed but plaintiff claims ownership of the disputed land by adverse possession.

Defendant Carnesi & Son, Inc., claims title to the same six acres by a deed from defendant County of Sullivan executed in 1977. The county in turn acquired ownership by deed from the county treasurer as the result of a tax sale for delinquent 1973 taxes. The county's deed was recorded on October 12, 1977, more than two years before this action was commenced and the action is barred by the provisions of subdivision 3 of section 1020 of the Real Property Tax Law ¹ unless cancellation is warranted pursuant to one of the exceptions contained in the subdivision.

Trial Term found that one Frances Ettinger acquired record title to the six acres in 1930 and still held it, that plaintiff had not acquired ownership by adverse possession and that even if it had, it had failed to sustain its burden of proving the tax proceedings were irregular and subject to cancellation. The Appellate Division 89 A.D.2d 722, 453 N.Y.S.2d 845 reversed. It found that plaintiff acquired ownership of the six acres by adverse possession and it held that the proceedings were constitutionally defective because the county had failed to assess the premises to the owner or occupant of the land and had failed to give personal notice to plaintiff of the tax sale. It held the original assessment and the tax sale void.

The provisions of the Real Property Tax Law have changed substantially since this sale in 1974, but under the law as it existed at the time, assessments were legally sufficient if the assessor assessed property in the "name of the owner, last known owner or reputed owner" so long as the property was described sufficiently on the assessment roll to identify it (Real Property Tax Law, § 502, subd. 2) and the roll was published as required by statute (Real Property Tax Law, § 506). The assessor was not required to give personal notice of the assessment to the owner because the correct name of the owner was not a primary concern. The assessment is against the property not the owner, and the obligation of the assessor is to correctly identify the property subject to tax. "Ownership is only one part of the identification and absent a description so imperfect that identification of the property with any degree of certainty is impossible, error or omission in identifying the owner does not invalidate the levy or enforcement proceedings (Real Property Tax Law, § 504, subd. 4; Matter of Doughty v. Loomis, 9 A.D.2d 574 , affd. 8 N.Y.2d 722 [201 N.Y.S.2d 100, 167 N.E.2d 643]; Crockford v. Zecher, 74 Misc.2d 1067, 1069 , affd. 45 A.D.2d 914 ; see, also, People ex rel. Gale v. Tax Comm. of City of N.Y., 17 A.D.2d 225, 227 )" (Lily Dale Assembly v. County of Chautauqua, 72 A.D.2d 950, 422 N.Y.S.2d 239, affd. 52 N.Y.2d 943, 437 N.Y.S.2d 967, 419 N.E.2d 870, cert. den. 454 U.S. 823, 102 S.Ct. 110, 70 L.Ed.2d 96).

Similarly, the statute provided for notice of an increase in assessment to the owner but a failure to mail or receive the notice did not prevent levy, collection, or enforcement of taxes (Real Property Tax Law, § 510). Nor did the statute require personal notice to the owner or occupant before or after a tax sale, except insofar as notice was required to shorten the period of redemption (Real Property Tax Law, § 1022, subd. 2; § 1024, subd. 2). The redemption period in this case expired in July, 1977, three years after the sale, and no further notice was required under the statute (Mabie v. Fuller, 255 N.Y. 194, 174 N.E. 450; Mosher v. La Rose, 44 A.D.2d 878, 355 N.Y.S.2d 831; Crockford v. Zecher, 74 Misc.2d 1067, 1073, 347 N.Y.S.2d 105, affd. 45 A.D.2d 914, 358 N.Y.S.2d 978). Moreover, we have held that there is no constitutional requirement that the owner receive personal notice of the tax sale or of expiration of the redemption period (Botens v. Aronauer, 32 N.Y.2d 243, 344 N.Y.S.2d 892, 298 N.E.2d 73, app. dsmd. 414 U.S. 1059, 94 S.Ct. 562, 38 L.Ed.2d 464; see, also, Ballard v. Hunter, 204 U.S. 241, 254-255, 27 S.Ct. 261, 265-266, 51 L.Ed. 461; Lily Dale Assembly v. County of Chautauqua, supra). Notification by publication is adequate.

These rules require reversal of the Appellate Division's order. Subsequent to its decision, however, the Supreme Court decided Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 in which it considered the notice due process requires and applied the principles of Mullane v. Central Hanover Trust Co. 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 to tax sales. It remains to determine what affect that decision has on this action.

In Mullane v. Central Hanover Trust Co. 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, supra, the Supreme Court stated that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice 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" (at p. 314, 70 S.Ct. at p. 657 [citations omitted] ). Personal notice is always adequate, but it is not indispensable in all circumstances. Due process requires only that the notice be appropriate to the nature of the case without creating impossible or impractical obstacles to concluding the proceedings. A balancing process is involved, to measure the interests of the State against the individual interest sought to be protected. If notice is due, it must be such as one actually desiring to give notice would reasonably adopt to accomplish it. As to parties whose identity and address is known, notice by publication may not be sufficient. Those whose names or whereabouts are unknown and cannot be learned with due diligence or those whose interests are uncertain may be notified by publication even though it is reasonably certain that such notice will prove futile (at p. 316, 70 S.Ct. at p. 658).

Mullane involved notice to beneficiaries of a common trust fund but consistent with it the courts for many years have held that indirect notice is sufficient in tax proceedin (North Laramie Land Co. v. Hoffman, 268 U.S. 276, 45 S.Ct. 491, 69 L.Ed. 953; Ballard v. Hunter, 204 U.S. 241, 254- 255, 27 S.Ct. 261, 265-266, 51 L.Ed. 461, supra; Huling v. Kaw Val. Ry., 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045; Botens v. Aronauer, 32 N.Y.2d 243, 344 N.Y.S.2d 892, 298 N.E.2d 73, supra; Lily Dale Assembly v. County of Chautauqua, 72 A.D.2d 950, 422 N.Y.S.2d 239, affd. 52 N.Y.2d 943, 437 N.Y.S.2d 967, 419 N.E.2d 870,supra). Statutes taxing real property are universal and pr operty owners are chargeable with knowledge that taxes will be levied against t he property regularly and that a default may result in forfeiture of the land ( cf.Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255).

In Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180, supra, the Supreme Court held that constitutional due process requires that a party possessing a substantial property interest which is affected and whose name and address are "readily ascertainable", is entitled to notice "reasonably calculated to apprise him of a pending tax sale" (at p. ----, 103 S.Ct. at p. 2711). The action involved a claim by a mortgagee whose rights had been extinguished by a tax sale. The court held that as to the mortgagee neither publication, posting nor mailed notice to the owner was sufficient because the mortgagee's interest clearly appeared on the real property records. Unless the mortgagee was not reasonably identifiable, it held that constructive notice was insufficient to satisfy due process strictures.

Applying these principles to this action, we find no constitutional infirmity in the assessor's actions.

Prior to 1919 these parcels were one and held in single ownership. In 1919, the larger 21-acre tract was encumbered by a purchase-money mortgage but for reasons which do not appear the six-acre parcel, subject of this litigation, was excepted from its terms. In 1935 the mortgage was foreclosed and the properties became separately owned. There were several subsequent conveyances but the 21-acre parcel was eventually acquired by White Lake Sanruth Corporation and the corporation conveyed it to plaintiff by a deed dated June 9, 1971 and recorded June 11, 1971. The deed to plaintiff expressly...