Goldmyrtle Realty Corp. v. Woellner

• Decision Date: 17 May 1971
• Citation: Goldmyrtle Realty Corp. v. Woellner, 36 A.D.2d 968, 321 N.Y.S.2d 654 (N.Y. App. Div. 1971)
• Parties: GOLDMYRTLE REALTY CORP., Respondent, v. Louise WOELLNER, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 654

321 N.Y.S.2d 654

36 A.D.2d 968

GOLDMYRTLE REALTY CORP., Respondent, v.Louise WOELLNER, Appellant, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

May 17, 1971.

Douglas H. Krieger, Flushing, for respondent.

Anne L. Glickman, New City, for appellant; Isabel L. Becker, New City, of counsel.

Before LATHAM, Acting P.J., and GULOTTA, CHRIST, BRENNAN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action by the grantee under a deed to real property, given pursuant to a sale of a tax lien, to bar all claims to the property pursuant to article 15 of the Real Property Actions and Proceedings Law, defendant Woellner appeals from a judgment of the Supreme Court, Rockland County, entered September 1, 1970 in favor of plaintiff, upon plaintiff's motion for summary judgment and said defendant's cross motion for (1) appointment of a guardian ad litem for her and (2) leave to amend her answer.

Judgment reversed, on the law, with $10 costs and disbursements; plaintiff's motion denied; defendant's cross motion granted; and matter remitted to the Supreme Court, Rockland County, for further proceedings in accordance herewith.

Plaintiff purchased a tax lien on defendant Woellner's property at a tax sale held on October 19, 1966.It paid $421.24 and received a tax lien certificate.The lien was not redeemed within the statutory period and, in November, 1967, plaintiff obtained a tax deed from the Rockland County Treasurer.It was recorded a month later.

Plaintiff commenced this action to bar all claims to the subject property in January, 1970.In opposition to plaintiff's motion for summary judgment, defendant Woellner alleged that she was an incompetent at the time of the tax sale and has remained so to date.Because of her mental state, it was argued, the statutory notices given in connection with the tax sale and redemption period were invalid and the tax deed itself was null and void.

In our opinion, Special Term erred in granting plaintiff's motion for summary judgment declaring it the absolute owner in fee simple of the subject property.If defendant Woellner can establish upon trial that she was a Known but not adjudicated incompetent at the times of the pertinent proceedings herein and still remains so, there would be no doubt that the statutory notices did not measure up to the requirements of due process (Covey v. Town of Somers, 351 U.S. 141, 146, 76 S.Ct. 724, 100 L.Ed. 1021).

Furthermore, although the relevant statute(Real Property Tax Law, § 1020, subd. 4) imposes a two-year Statute of Limitations...