Lily Dale Assembly, Inc. v. Chautauqua County

• Decision Date: 16 November 1979
• Citation: 72 A.D.2d 950,422 N.Y.S.2d 239
• Parties: LILY DALE ASSEMBLY, INC., Respondent, v. The COUNTY OF CHAUTAUQUA, Defendant, and Gregory D. Josephson, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 239

422 N.Y.S.2d 239

72 A.D.2d 950

LILY DALE ASSEMBLY, INC., Respondent, v. The COUNTY OF CHAUTAUQUA, Defendant, and Gregory D Josephson, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 16, 1979.

Erickson, Webb & Scolton, Jamestown by Philip A. Erickson, Jamestown, for appellant.

Aular & Woodbury, Dunkirk by William Aular, Dunkirk, for respondent.

Before SIMONS, J. P., and HANCOCK, CALLAHAN, DOERR and MOULE, JJ.

MEMORANDUM:

Plaintiff brings this action pursuant to Article 15 of the Real Property Actions and Proceedings Law to determine claims to real property conveyed to it in 1910. Defendant Josephson claims title as a result of a 1977 tax deed from defendant County. Plaintiff contends that the sale, regular in all other respects, is void because it did not receive prior written notice as required by section 1002(4) of the Real Property Tax Law which provides that before publishing notice of the intended sale of tax parcels, the county treasurer shall "cause notice of such tax sale to be sent by first class mail to the name and address of the owner or occupant, as shown on the assessment roll, of each parcel to be sold." Concededly, such notice was not sent because the assessors did not know who owned the property. Special Term held that the assessors had a duty to "diligently inquire" into the identity of the owner, that their failure to determine the owner was unexcused, and that the want of personal notice to plaintiff made the sale jurisdictionally defective (see Real Property Tax Law, § 500). It granted plaintiff summary judgment vacating the sale.

The real property in question is an unoccupied one-quarter acre parcel located on the shores of Cassadaga Lake. For several years it has been described by reference to tax maps as Section 102, Block 10, Lot 2, in the Town of Stockton, Chautauqua County. It is immediately south and adjacent to a much larger 20-acre parcel (Section 102, Block 10, Lot 1) belonging to plaintiff Lily Dale Assembly, Inc. Plaintiff acquired both parcels by a single grant in 1910, the lot in question being described in a separate paragraph of the premises conveyed as described in the deed. The parties concede that up to this tax sale plaintiff was the owner of the land in question.

For many years the assessors did not list on the tax rolls parcels whose owners were unknown and no taxes were levied against Lot 2. In 1974, for the first time, the property was listed "owner unknown." The taxes were not paid and in 1975 the County bought the Lot. In 1977 it conveyed it to defendant. Plaintiff bid at the sale (although apparently unaware it held record title to the parcel) but was unsuccessful.

The statutory duty of preparing the assessment rolls is placed upon the town and city assessors (Real Property Tax Law, § 500). They are charged with the responsibility of ascertaining by "diligent inquiry" all the real property in the district and the names of the owners thereof to the end that all property shall share the burden of the tax levy. Once identified, each parcel of property is placed upon the assessment roll with its assessment listed. The tax is levied against the real property itself, not the owner (Real Property Tax Law, § 304(1)). The land stands as security for the tax debt and upon default in payment collection is by proceedings in rem against the property. Since the tax is levied upon the property, it is the identification of the property on the roll that is important, not the name of the owner. 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(4); Doughty v. Loomis, 9 A.D.2d 574, 189 N.Y.S.2d 413, 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, 347 N.Y.S.2d 105, 107, affd. 45 A.D.2d 914, 358 N.Y.S.2d 978; see, also, People ex rel. Gale v. Tax Comm. of City of N.Y., 17 A.D.2d 225, 227, 233 N.Y.S.2d 501, 503). Indeed, the statute provides that the property may be listed in the name of the owner, last owner, or reputed owner (Real Property Tax Law, § 502(2)) and identification may be made, as was done here, by reference to a tax map (Real Property Tax Law, § 502(2)).

Notwithstanding these well-established rules, Special Term applied the "diligent inquiry" language of section 500 to the recently enacted provisions of section 1002(4) of the Real Property Tax Law and held the County's sale to defendant void for want of personal notice to plaintiff. No ...