Conklin v. Jablonski

• Decision Date: 29 July 1971
• Citation: 67 Misc.2d 286,324 N.Y.S.2d 264
• Parties: Lily CONKLIN, Plaintiff, v. Margaret A. JABLONSKI et al., Defendants.
• Court: New York Supreme Court

Page 264

324 N.Y.S.2d 264

67 Misc.2d 286

Lily CONKLIN, Plaintiff, v. Margaret A. JABLONSKI et al., Defendants.

Supreme Court, Special Term, Nassau County, Part I.

July 29, 1971.

Robinson & Cincotta, Oyster Bay, for plaintiff.

Cohn & Foley, Baldwin, for defendant Jablonski.

MEMORANDUM

BERNARD S. MEYER, Justice.

This bar claim action raises the question of the effect of an error of the tax assessors in locating on the Land and Tax Map the dividing line between properties. Plaintiff, Lily Conklin, except as her title was affected by the tax sale of Lot 110, Block A, Section 26, is the owner by inheritance of land encompassed by all of Lot 111 and the southernmost one quarter of Lot 110. Defendant Jablonski, the only contesting defendant, acquired title to Lot 110 by mesne conveyance from the tax sale purchaser of that lot. Defendant Jablonski moves pursuant to CPLR 3211(a)(5) to dismiss the action on the grounds of res judicata and because, she claims, the action having been brought more than six years after the recording of the Treasurer's deed to the tax sale purchaser is barred by the statute of limitations contained in Nassau County Administrative Code § 5--54.0(b), Laws 1939, c. 272. Plaintiff cross-moves for leave to add a party plaintiff and a party defendant

and to serve a supplemental complaint. For the reasons hereafter stated, defendant's motion is denied. Plaintiff's cross-motion is granted.

FACTUAL BACKGROUND

Since the motion is made prior to answer the facts on which it is to be decided are to be drawn from the complaint and affidavits. The facts necessary to decision are undisputed and are as hereafter stated.

Lily Conklin's predecessor in title, her father-in-law, acquired title in 1908, by metes and bounds description, of the property now encompassed in the southernmost quarter of Lot 110, of the one and one half story frame house located thereon, and of Lot 111 from Mary E. Conklin. Mary E. Conklin continued to own the land encompassed in the northernmost three quarters of Lot 110 and a two and one half story house thereon. Mary Conklin died in 1951, the two and one half story house became dilapidated, her administratrix failed to pay the 1960 taxes, a tax sale of the lien resulted, and in December 1962, the Treasurer conveyed to the tax lien purchaser, one Harris, by deed referring to 'Section 26, Block A, Lot 110 on the Nassau County Land and Tax Map'.

The Treasurer's deed was recorded on January 2, 1963 and on February 25, 1963, Harris began a bar claim action in the County Court in which Lily Conklin, but not Mary E. Conklin or her administratrix, was named as one of the parties defendant. The complaint in that action covered nine separate parcels of land at diverse locations within the County Parcel Number 2 being identified simply as 'Section 26, Block A, Lot 110'. With respect to the reason for joining the various defendants named, the complaint contained only the allegation: 'That the defendants unjustly claim or might claim an interest or easement in said premises adverse to that of the plaintiff, the particular nature of such interest being a claim in fee on the part of all of the defendants herein, except' defendants other than Lily Conklin.

Lily Conklin admits service upon her of 'a document', which it may be inferred was the summons and complaint, that being what the affidavit of service says was served on her. She checked with the Department of Assessment and was advised that she was the owner of Lot 111, on which the taxes were not in default, and since the 'document' referred only to Lot 110 she took no further action. Judgment was entered on default on August 2, 1963, on the basis of an affidavit (only part of which is contained in the moving papers, but which the court has requisitioned and of which it takes judicial notice, George v. Time, Incorporated, 259 App.Div. 324, 19 N.Y.S.2d 385, affd. 287 N.Y. 742, 39 N.E.2d 941) of the attorney for plaintiff in that action reciting 'That deponent has inspected the premises described as Parcels Nos. 2, 3, 4, 6, 8 and 9 of the complaint herein and finds all of them Lot 110 is roughly rectangular in shape, being 107 feet across its northern border and running south approximately 429 feet to the northern border of Lot 111. Lot 111 is an irregular pentagon, its western line being the continuation of the western line of Lot 110, but its eastern line veering abruptly eastward from the end of the eastern line of Lot 110 and then back to the west. At about the middle of Lot 110 stands the dilapidated two and one half story frame house above referred to and on its southernmost quarter, the one and one half story house conveyed by Mary Conklin to Lily Conklin's predecessor. On Lot 111 the only building is a garage 10.5 feet by 21.5 feet in size. Had the tax map lines been drawn consistently with the metes and bounds descriptions of the two properties, the dividing line between them would be located some 117 feet north of the line shown on the map and the one and one half story house would be located on Lot 111.

are vacant and unoccupied, except * * * Parcel No. 2 of the complaint herein (Lot 110), which is improved with a dwelling house, but which said structure is completely uninhabitable'. On August 9, 1963, Lot 110 was conveyed by Harris to one Connolly, defendant Jablonski's immediate predecessor in title, by a deed bearing the notation 'No consideration'.

The assessment on Lot 111 from 1962 through 1971 has been 'Land $1,000. Total $3,350.', thus reflecting the existence of the house, and since it is undisputed that the house has existed on Lily Conklin's property since before the 1908 conveyance to her father-in-law, it may reasonably be inferred that the assessments of Lot 111 prior to 1962 likewise reflected the existence of the house. Through 1963 Lot 110 was carried on the assessment rolls at $1,800. for land and $4,100. total, but on the basis of a petition submitted in 1963 by Harris or Connolly to have the property declared vacant because of the uninhabitable condition of the house located thereon, the assessment on Lot 110 was reduced in 1964 to, and remains, 'land $1,800. total $1,800.'.

The taxes on Lot 111 have never been in default and the one and one half story house has been occupied by Lily Conklin and her husband or by her tenants from at least 1935 and through June 1970. In June 1970 the then tenant left and Lily Conklin sought to transfer the house and land to her nephew. None of the tenants was ever contacted by Harris or Connolly or in any way disturbed in possession. By deed dated July 28, 1970, defendant Jablonski acquired title from Connolly to Lot 110 and during the late summer of 1970 made claim to the one and one half story house, preventing entry by Lily Conklin and her nephew. The present action was begun by Lily Conklin within two months thereafter.

THE STATUTE OF LIMITATIONS

The limitations point will be dealt with first since, if plaintiff is barred by limitations in any event, there is no need to consider the res judicata question.

Unlike Real Property Tax Law §§ 1020(3) and 1136(7) or Section 53 of the Suffolk County Tax Act (Laws 1929, Ch. 152 as amended by Laws 1941, Ch. 140) and unlike Section 93 of the Nassau County Tax Act (Laws 1916, Ch. 541, as added by Laws 1919, Ch. 154, sec. 1) which it superseded, Section 5--54.0(b) of the Nassau County Administrative Code is not stated in one continuous paragraph. It is, rather, subdivided within itself and appears in the following form:

'b. Every such conveyance shall be attested by the county treasurer and the seal of the county treasurer shall be attached thereto. When so executed, the conveyance shall be presumptive evidence that:

1. The sale of the tax lien was regular.

2. All proceedings prior to such sale, including the assessing of the lands affected by such tax lien were regular.

3. All notices required by section 5--51.0 of the code to be given provious to the expiration of the time allowed by that section for previous to the expiration of the time given and were regular and according to law. After six years from the date of record of any such conveyance in the county clerk's office, such presumption shall be conclusive.'

Since the six year conclusive presumption sentence is part of subparagraph 3, it can be argued that the word 'such' in its concluding clause refers only to the presumption concerning notices and not to the regularity of the sale and proceedings prior to sale. American Smelting & Refining Co. v. Stettenheim, 177 App.Div. 392, 396, 164 N.Y.S. 253, 256; Cannon v. Towner, 188 Misc. 955, 965, 70 N.Y.S.2d 303, 312, the more so because doubts as to the construction of taxing statutes are to be resolved in favor of the taxpayer and the burdens imposed by such statutes are not to be extended by implication, Matter of Amer. Cyanamid & Chem. Corp. v. Joseph, 308 N.Y. 259, 263, 125 N.E.2d 247, 248; 1 McKinney's Consolidated Laws, Statutes § 313. Were the provision so construed the presumption concerning regularity of assessment would be rebuttable, Werking v. Amity Estates, 2 N.Y.2d 43, 48, 155 N.Y.S.2d 633, 638, 137 N.E.2d 321, 324, app. dismd. and cert. den. 353 U.S. 933, 77 S.Ct. 812, 1 L.Ed.2d 756, and would be rebutted by the evidence, above detailed, concerning the tax assessors' error in locating the southerly line of Lot 110. The court concludes that the provision should not be so construed, however, because Section 5--54.0(b) is a re-enactment of Section 93 of the Nassau County Tax Act, and changes Nevertheless, the action cannot be dismissed as barred by limitations on the facts presented by the present papers, for a number of reasons.

in arrangement or in division of a re-enactment will not work a change in its meaning or construction unless the legislative intent to change is manifest. Fifth Avenue Building Co. v. Kernochan, 221 N.Y. 370, 375--376, 117 N.E. 579, 581; Davis v. Davis, 75 N.Y. 221; 1...