Town of Somers v. Covey

• Decision Date: 10 January 1957
• Court: New York Court of Appeals Court of Appeals
• Parties: , 140 N.E.2d 277 TOWN OF SOMERS, Respondent, v. Edwin B. COVEY, as Committee of the Person and Property of Nora Brainard, anIncompetent, Appellant.

Page 196

159 N.Y.S.2d 196

2 N.Y.2d 250, 140 N.E.2d 277

TOWN OF SOMERS, Respondent, v. Edwin B. COVEY, as Committee of the Person and Property of

Nora Brainard, anIncompetent, Appellant.

Court of Appeals of New York.

Jan. 10, 1957.

Samuel M. Sprafkin, Adolph I. King and Mandel M. Einhorn, New York City, for appellant.

Harry H. Chambers and Otto E. Koegel, New City, for respondent.

Jacob K. Javits, Atty. Gen. (John R. Davison and James O. Moore, Jr., Albany, of counsel), in his statutory capacity under section 71 of the Executive Law, Consol.Laws, c. 18.

CONWAY, Chief Judge.

The decision of this court in Town of Somers v. Covey, 308 N.Y. 798, 125 N.E.2d 862, affirming an order of the Appellate Division in favor of the Town of Somers and answering the certified question in the affirmative, has been reversed by the Supreme Court of the United States, and the case has been remanded to this court 'for proceedings not inconsistent with this opinion.' Covey v. Town of Somers, 351 U.S. 141, 147, 76 S.Ct. 724, 727, 100 L.Ed. 1021. On the basis of such reversal and remand, the petitioner- appellant Covey, committee of the person and property of Nora Brainard, an incompetent, now seeks, in substance, an order which would vacate the default judgment of foreclosure against the incompetent and set aside and void the deed which conveyed certain of her real property to the town because she was delinquent in the payment of her taxes. Adjudication of the motion requires a re-examination of the facts of the case, the rationale of our decision and the extent to which it has been affected by the action of the Supreme Court.

On May 8, 1952 the respondent town commenced an action under title 3 of article VII-A of the Tax Law, Consol.Laws, c. 60, which provides, in sections 165 et seq., for the judicial foreclosure of tax liens on real property. The action with which we are concerned involved the foreclosure of liens for tax arrears unpaid for more than four years prior thereto with respect to a number of properties in the Town of Somers, including the property which is the subject of this case. Under the provisions of section 165-a of the Tax Law the filing at the county clerk's office of a list of all parcels of property affected by tax liens which have been unpaid for a period of at least four years constitutes the filing of a notice of lis pendens and of a complaint, and commences an action against the property. Provision is made in section 165-b for notice by publication, by posting and by mailing. The prescribed notice is to the effect that, unless the amount of unpaid tax lien, together with interest and penalties is paid within seven weeks, or an answer interposed within 20 days after the last day for redemption, any person having the right to redeem or answer shall be forever foreclosed of all his right, title and interest and equity of redemption in and to the affected property. The statute provides in section 165-h thereof for the entry of a judgment of foreclosure awarding possession of the property to the tax district and directing execution of a deed by the collecting officer of the tax district conveying an estate in fee simple absolute to the district.

The respondent town complied with the provisions of the statute. Simultaneously with the institution of the action in May of 1952, publication was commenced by notice of foreclosure in the Westchester Post and The Record, newspapers serving an area including the Town of Somers. In addition, notice of commencement of the action was given to Nora Brainard by mailing and posting. Nora Brainard did not redeem her property or interpose an answer. Four months after the commencement of the action, and on September 8, 1952, judgment of foreclosure was entered with respect to all owners who had failed to redeem their properties within the time permitted by the statute. On October 24, 1952 a deed to the property owned by Nora Brainard was delivered to the Town of Somers and recorded in the office of the clerk of Westchester County. Similar conveyances were made and recorded in the cases of the other unredeemed properties.

Thereafter, on November 6, 1952, Nora Brainard was admitted to the Harlem Valley Hospital as a person of unsound mind. On February 13, 1953 the appellant was appointed and qualified as a committee of the incompetent. It must be assumed on the state of the record that Nora Brainard was a known incompetent, to the town itself, for a period of years before her commitment to the institution.

On October 26, 1953, just one year from the time the deed had been delivered to the town and recorded, the committee made a motion in the County Court of Westchester County to vacate the default, to set aside the deed to the respondent town and to allow the incompetent to answer or appear or otherwise move with respect to the 'Notice of Foreclosure of Tax Liens by the Town of Somers. In Rem'. On December 3, 1953, the County Court denied the motion. In its opinion the County Court first set forth the contention of the committee as follows: '* * * It is contended that the default of said Nora Brainard was excusable since she was a known incompetent at the time that proceedings were instituted and that by reason of her mental incapacity she did not know the nature of the proceeding and that the Court was not apprised of her condition and no onw was appointed to act in her behalf. It is further contended that section 165-a of the Tax Law with respect to incompetents is unconstitutional in that the manner of giving notice to an incompetent is inadequate. * * * ' (Emphasis supplied.)

After so stating the committee's contention the County Court declared, in part: 'In the first instance it should be pointed out that the procedure adopted by the applicant is improper. Subdivision 7, section 165-h of the Tax Law provides substantially that there is a conclusive presumption after two years from the date of the recording of the deed that the action and all proceedings were regular and in accordance with the provisions of law relating thereto, and further provides 'No action to set aside such deeds may be maintained unless the action is commenced and a notice of pendency of the action is filed in the office of the proper County Clerk prior to the time that the presumption becomes conclusive * * *'. In the case at bar no action to set aside the deed has been commenced and no lis pendens has been filed although the time that the presumption becomes conclusive has not expired. * * *' (Emphasis supplied.)

Thus did the court of first instance point out to the committee that where the owner of a parcel of realty included in the list filed with the county clerk pursuant to section 165-a of the Tax Law has failed to redeem or answer within the prescribed time, and the deed has been delivered to the tax district, a motion to open the default is not a available and that the deed may be set aside only in an action brought for that purpose. The County Court did not reject, on the merits, the committee's contention that the notice given to the incompetent was inadequate to afford her due process of law.

The decision of the County Court was handed down more than ten months prior to the time when the presumption of regularity of the foreclosure proceedings would become conclusive and be not subject to attack by an action to set aside the deed. See Tax Law, § 165-h, subd. 7.

In affirming the determination of the County Court the Appellate Division made clear to the committee the reason why a motion to open the default was not available to him. That court said: 'Upon the expiration of the time prescribed by the statute, Tax Law, § 165 et seq., for redemption and answer, the rights of the parties, in view of the provisions of section 165-a of the Tax Law, became fixed and unalterable. The latter section is in the nature of a statute of limitations and precludes the court from extending the time to answer or redeem therein prescribed.' 283 App.Div. 883, 129 N.Y.S.2d 537, 538; emphasis supplied.

The Appellate Division, like the County Court, did not reject, on the merits, the committee's contention that the notice given to the incompetent was inadequate to afford her due process of law.

The decision of the Appellate Division was handed down more than six months prior to the time when the presumption of regularity of the foreclosure proceedings would become conclusive and be not subject to attack by an action to set aside the deed.

Instead of accepting the determination of the County Court and the Appellate Division by instituting an action to set aside the deed, as he had been told was the proper procedure to obtain a hearing upon the merits, the committee appealed to our court. The case came on to be heard by our court in January of 1955, two years and three months after the deed had been delivered to the town. We unanimously affirmed, without opinion. In our confidential report on the case we made note of the fact that the committee failed to make any mention in his...