Harville v. County of Erie

• Decision Date: 10 March 1989
• Parties: Edward HARVILLE, Appellant, v. COUNTY OF ERIE, State of New York, Respondent, and et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 192

539 N.Y.S.2d 192

148 A.D.2d 954

Edward HARVILLE, Appellant, v. COUNTY OF ERIE, State of New York, Respondent, and et al., Defendants.

Supreme Court, Appellate Division,

Fourth Department.

March 10, 1989.

Cohen & Lombardo, by Jean Graziani, Buffalo, for appellant.

Patrick H. NeMoyer, County Atty. of Erie County by Gregory Brown, Buffalo, for respondent.

Before DILLON, P.J., and CALLAHAN, BOOMER, GREEN and DAVIS, JJ.

MEMORANDUM:

On January 8, 1988, the County of Erie sent a notice of foreclosure of tax liens by certified mail, return receipt requested, to petitioner at his home address. The U.S. Postal Service attempted two deliveries of the letter. On each occasion a notice was left informing the addressee that a certified letter addressed to him could be claimed at a designated post office. The unclaimed letter was returned to the County on January 23, 1988. On June 9, 1988, the County conducted an in rem tax foreclosure sale of two properties owned by petitioner. Petitioner commenced this proceeding to set aside and vacate the judgment of foreclosure and sale of his properties, alleging that he never received notice. He asserted that the County did not comply with the notice provision of the Erie County Tax Act (Article XI, section 11-13.0) because it mailed the notice of foreclosure of tax liens by certified mail rather than by ordinary mail. Petitioner did not assert that he never received the notices regarding the certified letter that were left at his home address. Moreover, he has not asserted a constitutional due process challenge to the notice provisions of the Erie County Tax Act. In other words, petitioner has not contended that the mode of mailing used by the County was not "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections" (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865; see, Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180). The court dismissed the petition and we now affirm.

The sole issue raised by petitioner is whether the County complied with the notice requirements of its Tax Act when it sent the notice of the tax foreclosure by certified mail, return receipt requested. The Erie County Tax Act (Article XI, section 11-13.0) requires that a copy of the notice shall "be mailed to the last known address of each owner of property affected thereby". The Act does not mandate a specific mode of mailing the notice to property owners. We conclude, therefore, that the manner of mailing used by the County constituted compliance with the Act.

The dissent is grounded on a constitutional due process argument that was never raised by petitioner and, therefore, is not properly before us (see, Tumolillo v. Tumolillo, 51 N.Y.2d 790, 433 N.Y.S.2d 89, 412 N.E.2d 1315; Arvantides v. Arvantides, 106 A.D.2d 853, 854, 483 N.Y.S.2d 550, affd. 64 N.Y.2d 1033, 489 N.Y.S.2d 58, 478 N.E.2d 199; City of Rochester v. Chiarella, 86 A.D.2d 110, 449 N.Y.S.2d 112, affd. 58 N.Y.2d 316, 461 N.Y.S.2d 244, 448 N.E.2d 98; Marine Midland Bank-Cent. v. Gleason, 62 A.D.2d 429, 405 N.Y.S.2d 334, affd. 47 N.Y.2d 758, 417 N.Y.S.2d 458, 391 N.E.2d 294; 4 NY Jur 2d, Appellate Review, § 117). Nonetheless, in our view, the method of mailing the notice of foreclosure used here by the County not only complied with the Act, but was a method "reasonably calculated" to apprise property owners of the pendency of the foreclosure action. The constitutional command for due process requires no more. 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 impracticable obstacles to concluding the proceedings (see, Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at p. 313, 70 S.Ct. at p. 657).

Judgment affirmed without costs.

All concur, except GREEN, J., who dissents and votes to reverse, in the following Memorandum:

The sole issue presented is whether the County Attorney properly served petitioner with a notice of tax foreclosure. The Erie County Tax Act (Article XI, Section 11-13.0) requires "such notice to be mailed to the last known address of each owner of property affected thereby." The County Attorney sent the notice by certified mail, return receipt requested on January 8 and 13, 1988. On January 23rd the return receipt was returned to the County as undelivered and unclaimed. Petitioner did not discover that the property was sold at a tax foreclosure sale until after the sale occurred. Petitioner commenced the instant proceeding to vacate the sale alleging that he never received the notice and that...