Town of Niskayuna v. Joll

Citation2020 NY Slip Op 32408 (U)
Decision Date04 May 2020
Docket NumberIndex No.: 2019-2498
PartiesTOWN OF NISKAYUNA, Petitioner, v. POMPEI A. JOLL and DONALD R. JOLL, Respondents. PROPERTY SUBJECT TO ABANDONMENT: 1019 Van Antwerp Road Niskayuna, New York 12309
CourtUnited States State Supreme Court (New York)

PRESENT: HON. MICHAEL R. CUEVAS JUSTICE OF THE SUPREME COURT

DECISION AND ORDER

NOTICE:

PURSUANT TO ARTICLE 55 OF THE CIVIL PRACTICE LAW AND RULES, AN APPEAL FROM THIS JUDGMENT MUST BE TAKEN WITHIN 30 DAYS AFTER SERVICE BY A PARTY UPON THE APPELLANT OF A COPY OF THE JUDGMENT WITH PROOF OF ENTRY EXCEPT THAT WHERE SERVICE OF THE JUDGMENT IS BY MAIL PURSUANT TO RULE 2103 (B)(2) OR 2103 (B)(6), THE ADDITIONAL DAYS PROVIDED SHALL APPLY, REGARDLESS OF WHICH PARTY SERVES THE JUDGMENT WITH NOTICE OF ENTRY.

APPEARANCES:

Alexis E. Kim, Esq., Deputy Town Attorney, Town of Niskayuna, New York (Petitioner)

MICHAEL R. CUEVAS, J.

INTRODUCTION

The Town of Niskayuna ("Niskayuna") seeks relief pursuant to Real Property Actions and Proceeding Law ("RPAPL") Article 19-A. Niskayuna specifically requests that this Court declare 1019 Van Antwerp Road, Niskayuna, New York 12309 ("the premises") abandoned, and vest title in fee simple absolute to Niskayuna under RPAPL Section 1974.

FACTUAL AND PROCEDURAL BACKGROUND

Niskayuna alleges in its verified complaint that Donald R. Joll and Pompei A. Joll (the "Jolls") are deceased individuals and are the documented owners of 1019 Van Antwerp Road, Niskayuna, New York 12309. Verified Petition ¶6. The property was conveyed to the Jolls by deed dated August 12, 1984, recorded on or around August 20, 1984. Verified Petition ¶10. Donald R. Joll died in March 2006, leaving Pompei A. Joll as the sole owner of the property. Verified Petition ¶7. In April, 2017, Pompei A. Joll was found dead inside the premises. Verified Petition ¶8.

Niskayuna alleges the premises has been vacant since April 2017, when it was condemned by the Building Department for the Town of Niskayuna and deemed unfit for human occupancy due to property maintenance violations.1 Verified Petition ¶2. The premises were boarded up and padlocks were installed on the doors. Verified Petition ¶2. The premises have been guarded since that time. Verified Petition ¶2.

Niskayuna further contends that property taxes are due for 2017, 2018, and 2019. Verified Petition ¶2. They also note that the value of the property has declined by 73% in three years and that the condition of the premises is harming the community and driving down surrounding property values and burdening taxpayers. Verified Petition ¶2.

Niskayuna commenced a special proceeding via a verified petition sworn to on February 13, 2020. Kim Aff. ¶23. Niskayuna alleges that it served notice of abandonment and that no party served with notice of abandonment has taken any actions under RPAPL. Kim Aff. ¶2. RPAPL Section 1972 (1) mandates that a copy of the certification of abandonment be filed with the county clerk where the dwelling is located with a notice ofintention to commence a special proceeding. Kim Aff. ¶3. The notice is required to contain the names of every individual to be served under RPAPL Section 1972, including the owner of the dwelling. Kim Aff. ¶3. This includes: "each mortgagee, lienor and lessee of record" and "claimant as shown on records maintained by any city official required by any local law to maintain records of persons entitled to notice or process in connection with the maintenance of in rem foreclosure actions." RPAPL §§1972 (2), 1972 (3). Such notice is to comply with the mandates detailed in CPLR Section 6511 (b).

On November 7, 2019, Niskayuna filed with the Schenectady County Clerk's office a notice of pendency of action against respondents Pompeii A. Joll and Donald R. Joll ("Jolls") and the premises. Kim Aff. ¶¶4, 5. Niskayuna indicates that it directed the Clerk to index the notice against the Jolls, the only parties required to be served by RPAPL §1972 . Kim Aff. ¶4. Niskayuna contends that the notice of pendency of action contains the names of all parties required to be served by RPAPL §1972, i.e. the record owners-the Jolls. Kim Aff. ¶¶3,7, 8, 20, Ex. H. Counsel for Niskayuna indicates that she confirmed with the Schenectady County Surrogate's Court on August 22, 2019, that there were no cases pending involving the Jolls. Kim Aff. ¶9.

The Niskayuna Police Department prepared an incident report regarding the death of Pompei A. Joll in April 2017. Kim Aff. ¶10, Petition Ex. C. The report identifies Christine McCabe, Lisa McCabe, and Anthony McCabe as relatives of Pompeii A. Joll. Kim Aff. ¶10, Petition Ex. C. Counsel for Niskayuna provided copies of the certification and notice of certification of abandonment to Christine McCabe (Hockeberger), Lisa McCabe, and Teri Lomonocco (Pompeii A. Joll's niece). Kim Aff. ¶¶12, 13, 14, Exs. C, D, E. The Certification of abandonment explains the basis for the designation as abandoned, "it is crime to take, remove, or otherwise damage any fixture or part of the building structure," and explains that the "Office of the Town Attorney will commence a proceeding in the Schenectady County Supreme Court in order to obtain a deed conveying title to the Town of Niskayuna pursuant to RPAPL Article 19-a unless the owner notifies the BuildingDepartment that this dwelling is not abandoned." Verified Petition ¶2. Niskayuna asserts that all of the individuals contacted claimed no interest in the property. Kim Aff. ¶¶13, 14, 15, Exs. D, E.

Niskayuna alleges that its Code Enforcement officer posted copies of the certification of abandonment in "conspicuous" places at the premises on August 23, 2019. Kim Aff. ¶17, Ex. G. The certificate specified that the dwelling has been found to be abandoned and stated that "it is a crime to take, remove, or otherwise damage any fixture or part of the building structure." Petition ¶¶16, 17, Exs. A,B. Moreover, the certificate stated "after properly notifying all interested parties, the office of the Town Attorney will commence a proceeding in the Schenectady County Supreme Court in order to obtain a deed conveying title to the Town of Niskayuna pursuant to RPAPL Article 19-a unless the owner notifies the Building Department that this dwelling is not abandoned." Petition ¶¶16, 17, Exs. A, B. The Building Department thereafter on August 26, 2019, sent a copy of the certification of abandonment by certified mail to the last known owner (the Jolls) at the last known address ("the premises)". Kim Aff. ¶17, Ex. F.

On November 7, 2019, Niskayuna filed a notice of pendency of action (lis pendens) against the Jolls and the premises. Petition ¶23, Ex. E. The notice of pendency indicates that Niskayuna seeks an order declaring the premises abandoned and a judgment authorizing the town to execute and record a deed conveying title in fee simple absolute. Petition ¶23, Ex. E. The notice of pendency was mailed to the Jolls at the premises. Petition ¶24. The notice of pendency was also affixed to the premises. Petition ¶24. The notices provide that the property owners have thirty days from the date of the notice to notify the town that the property was not abandoned. RPAPL §1972 (2). The Town of Niskayuna argues that since "[n]o person served or contacted as described herein has taken the appropriate action prescribed in response thereto" that their requested relief shall be granted. Kim Aff. ¶23. Further, that since all provisions of RPAPL Section 1972have been complied with, that Section 1973 (1) allows the proceeding for declaration of abandonment and execution of title to occur.

THE LAW AND DISCUSSION
A. FAILURE TO OBTAIN PERSONAL JURISDICTION

Petitioner has the burden to establish personal jurisdiction over a respondent. OCI Mortgage Corp. v. Omar, 232 A.D. 2d 462 (2d Dept. 1996), Janko Pool Service, Inc. v. Berelson, 145 A.D. 2d 897 (3d Dept. 1988), Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 A.D. 2d 135 (2d Dept. 1986). When an individual dies, personal jurisdiction over that deceased individual cannot be obtained. 1 Warren's Weed New York Real Property §3.05 (2020) (Executors and Administrators), citing to EPTL §11-3.3. In the case of a real property action, the lawsuit survives the death, but the executor or administrator of the decedent's estate, in a representative capacity, becomes the proper party to the action. Id.

"It is fundamental that the representative party must actually be appointed prior to the commencement of the action." If a party defendant dies during the pendency of an action, his personal representative may be substituted upon application of any party; in order for jurisdiction to be acquired properly, the personal representative must then be served with process in the action."

Id, citing to Hemphill v. Rock, 87 A.D. 2d 836 (2d 1982), CPLR§1021. Where the party petitioning for the appointment of an administrator for a deceased party is unable to identify the next of kin willing to serve as a personal representative, the county administrator of the county, in which the decedent died a resident, is the appropriate party to nominate as personal representative of the decedent. Id, citing to SCPA §311. The Surrogate's Court is the proper venue to decide what happens to a deceased individual's property, and for appointment of a personal representative.2 Where the Court finds thatjurisdiction is not proper, it may dismiss a proceeding sua sponte. Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 324 (1889), CPLR§1021. Because Petitioner failed to obtain personal jurisdiction by applying for a personal representative through Surrogate's Court, dismissal is warranted.

B. FAILURE TO COMPLY WITH RPAPL ARTICLE 19-A AND DUE PROCESS

In this special proceeding, the Town of Niskayuna seeks an order and judgment of the Court declaring the real property owned by Pompei A. Joll at the time of her death in 2017, as abandoned. Additionally, the Town seeks an order directing fee simple absolute title in favor of the Town, pursuant...

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