Weigner v. City of New York, 570

• Decision Date: 14 July 1988
• Docket Number: No. 570,D,570
• Citation: 852 F.2d 646
• Parties: Josephine WEIGNER, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Appellee. ocket 87-7743.
• Court: U.S. Court of Appeals — Second Circuit

Page 646

852 F.2d 646

57 USLW 2065

Josephine WEIGNER, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Appellee.

No. 570, Docket 87-7743.

United States Court of Appeals, Second Circuit.

Argued Jan. 28, 1988.

Decided July 14, 1988.

Edward J. Ledogar, West Islip, N.Y., for plaintiff-appellant.

Ronnie Dane, New York City (Peter L. Zimroth, Corp. Counsel, Pamela Seider Dolgow, Angelo Aiosa, Susan M. Shapiro, New York City, on the brief), for defendant-appellee.

Before OAKES, NEWMAN, and MINER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

Josephine Weigner appeals from a judgment of the District Court for the Eastern District of New York (Henry Bramwell, Judge) granting summary judgment against her in a diversity suit challenging the constitutional validity of tax lien foreclosure procedures of the City of New York. Weigner argues that the notice by first-class mail furnished pursuant to the City's Administrative Code was inadequate under the Due Process Clause of the Fourteenth Amendment. She argues that, at a minimum, due process requires notice by certified mail, return receipt requested, to property owners who risk tax lien foreclosure of their interests in real estate. Additionally, Weigner contends that the City's notice of foreclosure was inadequate under state law and that the Board of Estimate improperly denied her application for a discretionary release of the City's interest in the property after the deed of foreclosure was entered. We conclude that notice sent by ordinary mail of the pendency of the tax lien foreclosure proceeding is all that the Constitution requires. We also reject Weigner's claims regarding the adequacy of notice under state law and the Board of Estimate's decision to deny a release.

Background

Josephine Weigner is a resident of Florida. Between 1959 and 1962 she acquired a group of 14 vacant parcels of land in South Jamaica, Queens, New York. Weigner failed to pay property taxes on the lots beginning in 1977. On October 1, 1981, the City of New York commenced an in rem tax foreclosure action against all real property in Queens on which real estate taxes had not been paid for a year or more. Weigner's 14 lots were among the 5,229 parcels in this proceeding. At the time the action was commenced, Weigner owed approximately $31,000 in back taxes. The market value of the 14 lots is estimated by the parties to be between $151,000 and $250,000.

Pursuant to the City's Administrative Code, notices of the commencement of the tax foreclosure action were mailed to Weigner at her home in Florida. The City had Weigner's address because she had filed with the Commissioner of Finance an "in rem card," which enables the City to mail a notice to the designated address in the event that properties listed on the card are included in an in rem tax foreclosure action. Administrative Code Sec. 11-417 (Lenz & Riecher 1986). City records reveal that on October 1, 1981, notices of tax lien foreclosure were sent to Weigner by ordinary first class mail. ¹ The parties dispute whether Weigner received these notices. ²

The "Notice of Foreclosure" sent to Weigner was a form letter that apprised "[a]ll persons having or claiming to have an interest in the real property" described on a list of tax delinquent parcels, that a foreclosure action had been commenced against the parcels. The notice indicated that the property could be redeemed on or before December 18, 1981. The notice further stated that anyone who failed to redeem his property would be "forever barred and foreclosed" of any right in the property "except for the remedies provided in Sections D17-7.0(c) and D17-25.0 of the Administrative Code." Section D17-7.0(c) (now renumbered as section 11-407(c)) permits the late redemption of property after the redemption date, but prior to entry of a judgment of foreclosure. Section D17-25.0 (now renumbered as section 11-424) permits the "release" of the City's interest in property after entry of a judgment of foreclosure. An application for release must be made within two years from the date the City's deed of foreclosure is recorded. A release application made within four months of the City's deed, "shall be granted," provided that it is timely and the applicant pays all back taxes, penalties, and interest. Administrative Code Sec. 11-424(f). An application made after four months and prior to two years is within the discretion of the Board of Estimate. Administrative Code Sec. 11-424(g). See generally Solomon v. City of New York, 94 A.D.2d 283, 286-87, 464 N.Y.S.2d 160, 162 (1st Dep't 1983).

Weigner failed to redeem her property by the December 18, 1981, deadline, nor did she request a late redemption. On March 6, 1984, a judgment of foreclosure was entered in the action. The City took title to the properties pursuant to a deed recorded on March 15, 1984. That gave Weigner until July 15, 1984, to apply for a mandatory release and until March 15, 1986, to apply for a discretionary release. On March 12, 1986, just three days short of the two-year discretionary release deadline, Weigner filed release applications with respect to each of her 14 parcels. After informing Weigner that her case for a discretionary release was weak, giving her an opportunity to submit more evidence, and holding a hearing, the Board of Estimate denied her applications.

Weigner initiated the present suit on October 22, 1986. Her complaint alleged that she received inadequate notice of the foreclosure proceeding and that by denying her release applications the Board of Estimate discriminated against her as an out-of-state resident and otherwise abused its discretion. The District Court granted summary judgment for the City. 668 F.Supp. 135 (E.D.N.Y.1987). The Court found that due process was satisfied because Weigner actually received notices of foreclosure. ³ The District Court further concluded that Weigner's equal protection claim lacked a factual basis and that the Board of Estimate had not abused its wide discretion under state law in denying her release applications.

Discussion

A. Notice

Weigner contends that summary judgment was improper because there is a disputed issue of material fact as to whether she received the notices of foreclosure that were sent to her. Though Weigner conceded in an affidavit that she received "some tax bills and other form letters from the City of New York" regarding the delinquent parcels, she denied receiving "proper notice" and now claims that she never received the notices of foreclosure. She argues that this is an issue of material fact because the notice provided by the Administrative Code was constitutionally insufficient unless received. Her claim raises the issue whether due process requires that notice of a tax lien foreclosure must not only be mailed to a property owner but also must be received.

Generally, when litigation is initiated to deprive individuals of their property, due process is satisfied by "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an 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 (1950) (emphasis added); accord Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180 (1983). The proper inquiry is whether the state acted reasonably in selecting means likely to inform persons affected, not whether each property owner actually received notice. As long as the state employs means "such as one desirous of actually informing the [property owner] might reasonably adopt to accomplish [that purpose]," then it has discharged its burden. Mullane, supra, 339 U.S. at 315, 70 S.Ct. at 657. "The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected ...." Id. Importantly, the state's obligation to use notice "reasonably certain to inform those affected" does not mean that all risk of non-receipt must be eliminated: " 'Now and then an extraordinary case may turn up but constitutional law like other mortal contrivances has to take some chances, and in the great majority of instances no doubt justice will be done.' " Id. at 319, 70 S.Ct. at 660 (quoting Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1, 2, 56 L.Ed. 65 (1911)); see Schroeder v. City of New York, 371 U.S. 208, 214, 83 S.Ct. 279, 283, 9 L.Ed.2d 255 (1962).

The Supreme Court has frequently said and just recently restated that, under most circumstances, notice sent by ordinary mail is deemed reasonably calculated to inform interested parties that their property rights are in jeopardy. Tulsa Professional Collection Services, Inc. v. Pope, --- U.S. ----, ----, 108 S.Ct. 1340, 1343, 99 L.Ed.2d 565 (1988); Mennonite Board of Missions v. Adams, supra, 462 U.S. at 800, 103 S.Ct. at 2712; Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 659. The mails are an "efficient and inexpensive means of communication" that generally may be relied upon to deliver notice where it is sent. Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 660. In the context of a wide variety of proceedings that threaten to deprive individuals of their property interests, the Supreme Court has consistently held that mailed notice satisfies the requirements of due process. See, e.g., Tulsa Professional Collection Services, Inc. v. Pope, supra, --- U.S. at ----, 108 S.Ct. at 1345 (notice to creditors in probate proceedings); Mennonite Board of Missions v. Adams, supra, 462 U.S. at 799-800, 103 S.Ct. at 2711-12 (notice to mortgagee of tax foreclosure); Greene v. Lindsey, 456 U.S. 444, 455, 102 S.Ct. 1874, 1880, 72 L.Ed.2d 249 (1982) (notice to public housing tenants of forcible entry and detainer actions); Schroeder v. City of New York, 371 U.S. 208, 214, 83 S.Ct. 279, 283, 9 L.Ed.2d 255 (1962) (notice of condemnation proceeding); ...