Floreck v. Citibank

— Judgment affirmed, with costs. Memorandum: Defendant, as fee owner of property in Onondaga County, may be sued personally by the county for its failure to pay taxes and special assessment for the years 1980, 1982 and 1983 (Onondaga County Tax Law § 13, L 1937, ch 690, as amended). Further, from the present record we agree with Trial Term that neither the special assessment nor the agreement was illegal and that defendant failed to overcome the presumption of the validity of the assessment (Pikas v 575 Town of Grand Is., 106 AD2d 887; Marine Midland Bank v Town Bd., 106 AD2d 890). Defendant now contends that the county’s action for a personal judgment for taxes for the years 1980, 1982, and 1983 is barred by its purchase of tax sale certificates in prior years. As the issue was not raised in the pleadings or at trial on stipulated facts, it may not be asserted here in the first instance (Lyons v Quandt, 91 AD2d 709; Arnold v New City Condominiums Corp., 88 AD2d 578; Matter of Van Wormer v Leversee, 87 AD2d 942). Even if we were to address this issue, it is without merit as defendant has not been divested of title to the property so as to relieve it of its liability for taxes (Young v Englestein, 53 NY2d 973). Additionally, while we agree with the dissenter’s statement that defendant’s liability for real property taxes for those years in which the county purchased tax sale certificates would normally be extinguished, defendant herein stipulated its willingness to pay those taxes. Based on that stipulation Trial Term did not err in granting a personal judgment against defendant for those undisputed taxes. All concur, except Callahan, J., who dissents and votes to hold the case, reserve decision, and remit the matter for further proceedings, in accordance with the following memorandum.