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Plaintiff seeks a Writ of Mandamus



In this proceeding pursuant to Article 78 of the CPLR, the petitioner seeks a judgment, in the nature of a writ of mandamus, requiring the respondent County Treasurer to permit her to redeem two contiguous parcels of real property which were the subjects of tax lien sales and, upon petitioner’s payment of the amount of said liens, together with any interest and penalties due thereon, directing the respondent County Clerk to cancel of record the deeds previously given by the respondent County Treasurer to the purchasers of the tax liens.

The petition is grounded upon the claim that the petitioner, as owner of the property, was not given actual notice of the sale of the tax liens and that the respondents failed to comply with the notice requirements of the Nassau County Administrative Code.

Before examining the facts underlying this application and before weighing the merits of the petition, it should be noted that although the petitioner has another procedural remedy available in that she could test the validity of the deeds given by the County Treasurer in an action in equity to determine adverse interests in the subject property, none of the respondents have challenged the appropriateness of reviewing the acts herein complained of by means of a proceeding under CPLR Article 78. Moreover, there is authority to the effect that mandamus is a proper vehicle for such review. While the parties have not raised the issue, the Court notes it because, as stated in the first of the cases cited Supra, ‘the determination of the County Treasurer challengeable under Article 78 CPLR is his determination that the purchaser at the sale of the tax lien is entitled to a deed’.

In this case, the deeds to the two purchasers were executed and delivered on March 5th and March 9th of this year. The notice of petition and petition commencing this proceeding were served upon the respondent County officials on July 22nd and 23rd, more than four months later. Again, however, none of the respondents has questioned the timeliness of the proceeding, and, therefore, the Court will treat it on the merits.

The petitioner acknowledges that she failed to pay the second half of the 1967 County and Town tax levy on each of the two parcels involved herein. On the one lot, those taxes amounted to $486.60, and on the other, to $111.64. She claims that the omission was inadvertent and that the property, one parcel of which is improved by a one-family residence, is worth approximately $300,000.00. In any event, petitioner has submitted receipted tax bills showing that the school, town and county taxes levied subsequently were paid in full.

Significantly, in this Court’s opinion, none of these subsequent tax bills gave notice that there were arrears due, although the form of the bill provides a space for such notice, and the Nassau County Administrative Code provides that notice of any arrears due shall be given in subsequent tax bills.

The major thrust of the petition is that the respondents failed to satisfy the notice requirements of the Nassau County Administrative Code applicable to the sale of tax liens and the foreclosure of the right to redeem following such a sale. The petitioner also contends that the provisions of the County Administrative Code specifying the manner in which notice to redeem is to be given are violative of the Due Process clauses of both the State and Federal Constitutions.

Prior to the issuance of the County Treasurer’s deed, the purchaser, as indicated above, must cause to be served on other interested parties, including the ‘owner in fee’ and ‘any other person having a lien, claim or interest * * *, the nature and degree of whose interest appears from the records kept by the county clerk, county treasurer, surrogate of the county and receiver of taxes for the town or city in which the property is located’, a notice specifying, among other things, the identity of the property involved, the date upon which the purchaser at the tax sale may elect to foreclose the lien or accept the County Treasurer’s deed, and the manner and period in which the party served may satisfy the tax lien.

Petitioner contends that the respondent purchasers did not comply with this requirement in connection with the notice to redeem on either of the two lots because the request for a return receipt, submitted by the respondents, did not request the post office to show the address where the registered mail was delivered.

The Court finds that the cumulative effect of the irregularities demonstrated by the affidavits and exhibits submitted in this proceeding were such as to deprive the petitioner of any substantial opportunity to redeem her property. It is true that she was under an obligation to keep herself informed as to what was transpiring with reference to her property and that, in failing to notify the Town Receiver of the change in her name and in the status of the ownership of the property, petitioner virtually ‘invited’ the difficulties that followed. Nevertheless, this Court fails to see why petitioner should be substantially penalized for these omissions by the loss of a valuable property when the respondent purchasers were at least equally remiss in failing to comply strictly with all the provisions of the applicable law.

They acknowledge that they did not request the post office to show the address where the registered notice to redeem was delivered, and they attempt to excuse that omission, in part, by claiming in their brief that until the commencement of this proceeding, the amendment of § 5–51.0, subdivision c, of the County Administrative Code mandating such a request ‘was not of general knowledge either to the office of the Treasurer of Nassau County, the tax lien buyers, or counsel involved in this field’.

Certainly, the respondents were chargeable with knowledge of this amendment, and certainly they were chargeable with knowledge that subsequent tax levies against the property involved were timely and fully paid. Such a circumstance does not indicate that the owner had intentionally or otherwise abandoned the property. It does, on the contrary, indicate an intention on the taxpayer’s part to protect his interest. It is evidence that the failure to pay the single levy in 1967 was inadvertent. It is, moreover, a starting place for anyone interested in locating the party who has such an interest in the property that he has been regularly paying the taxes thereon after the single default.

Moreover, in this Court’s opinion, the Nassau County Administrative Code, insofar as it permits sale of the tax lien without any prior notice to the taxpayer other than publication of a list of properties affected in local newspapers, may not measure up to the standard of notice required by the Due Process Clause of the Fourteenth Amendment, unless the provisions thereof relating to service of the notice to redeem are construed, as they are herein, to require the purchaser to make diligent search for the identity and whereabouts of parties having an interest in the property and to comply strictly with the procedures set forth for giving such parties notice of the sale of the tax lien, the right to redeem, and the consequences of the failure to redeem.

‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated * * * to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections’.

Of course, sale of the tax lien is not accorded finality under the Nassau County Administrative Code, and the failure of the County to give notice other than by publication of the impending sale may, therefore, be constitutionally permissible, so long as the procedures allowing the taxpayer to redeem after the sale are reasonably calculated to give him notice and an opportunity to be heard before final disposition of his property is made.

Since, therefore, those provisions of the Administrative Code relating to the giving of such notice are, in the Court’s opinion, constitutionally mandated, the failure of the respondent purchasers to comply strictly therewith cannot be excused and the relief sought in the petition must be, and is, granted.

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