In re Foreclosure of Tax Liens by Cnty. of Sullivan

• Decision Date: 11 April 2013
• Citation: 2013 N.Y. Slip Op. 02436,964 N.Y.S.2d 266,105 A.D.3d 1170
• Parties: In the Matter of the Foreclosure of Tax Liens by COUNTY OF SULLIVAN. County of Sullivan, Respondent; Witold Matejkowski, Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1170
964 N.Y.S.2d 266
2013 N.Y. Slip Op. 02436

In the Matter of the Foreclosure of Tax Liens by COUNTY OF SULLIVAN.
County of Sullivan, Respondent;
Witold Matejkowski, Appellant.

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

April 11, 2013.

[964 N.Y.S.2d 267]

Marvin Newberg, Monticello, for appellant.

Sam Yasgur, County Attorney, Monticello (Thomas J. Cawley of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, STEIN and SPAIN, JJ.

STEIN, J.

[105 A.D.3d 1170]Appeal from an order of the County Court of Sullivan County (McGuire, J.), entered June 14, 2012, which, in a proceeding pursuant to RPTL article 11, among other things, denied respondent's motion to vacate a default judgment entered against him.

In 2002, respondent and Miroslaw Krulasik purchased property consisting of 11 building lots in Sullivan County. The bargain and sale deed that was recorded listed an address in Bayonne, New Jersey for Krulasik and an address in New York City for respondent. The County tax roll listed both respondent and Krulasik at the Bayonne address and the County annually mailed property tax bills to that address. Krulasik paid the property taxes and respondent reimbursed him. However, respondent claims that Krulasik moved out of the country in 2009 or 2010, and that respondent thereafter paid Krulasik's wife an unspecified amount of money to purchase his interest in the property. Despite these events, respondent never notified the County of the transfer, nor did he provide the County with an alternate address for the tax roll or to which the tax bills should be sent.

In 2010, the property appeared on the County's list of delinquent taxes. The

[964 N.Y.S.2d 268]

County subsequently commenced this in rem tax foreclosure proceeding pursuant to RPTL article 11 and mailed notice of the proceeding by certified and ordinary mail to respondent and Krulasik at the Bayonne address. While the certified mail was returned as unclaimed, the notice sent by ordinary mail was not returned. Additionally, the County similarly mailed notices to respondent at the New York City address listed on the deed; both the certified and regular mailings were returned. When neither respondent nor Krulasik appeared in the tax foreclosure proceeding, County Court granted the County's motion for a default judgment of foreclosure and such judgment was duly entered. Two months later, respondent moved by order to show cause for an order vacating the default judgment, claiming that he did not receive notice of the foreclosure[105 A.D.3d 1171]proceeding. Upon County Court's denial of the motion, this appeal ensued.¹

We affirm. Initially, we note that, inasmuch as respondent moved to vacate the default judgment more than one month after such judgment was entered, respondent's motion was untimely ( seeRPTL 1131; Matter of County of Schuyler [Solomon Fin. Ctr., Inc.], 83 A.D.3d 1243, 1244–1245, 921 N.Y.S.2d 376 [2011],lv. dismissed17 N.Y.3d 850, 930 N.Y.S.2d 545, 954 N.E.2d 1171 [2011];Matter of County of Sullivan [Yong Tuk Yun], 82 A.D.3d 1560, 1561, 920 N.Y.S.2d 450 [2011];Matter of County of Sullivan [Fay], 79 A.D.3d 1409, 1410, 912 N.Y.S.2d 786 [2010],lv. dismissed17 N.Y.3d 787, 929 N.Y.S.2d 86, 952 N.E.2d 1081 [2011] ). In addition, County Court properly concluded that the County complied with RPTL 1124 and 1125 and that such compliance provided respondent with due process ( see Matter of County of Sullivan [Spring Lake Retreat Ctr., Inc.], 39 A.D.3d 1095, 1096, 835 N.Y.S.2d 482 [2007];Matter of Foreclosure of Tax Liens by County of Clinton [Tupaz], 17 A.D.3d 914, 915, 793 N.Y.S.2d 596 [2005];see also Matter of County of Ontario [Helser], 72 A.D.3d 1636, 1637, 900 N.Y.S.2d 524 [2010] ).

Tax foreclosure proceedings enjoy a presumption of regularity, such that “[t]he tax debtor has the burden of affirmatively establishing a...