In re Tax Foreclosure Action No. 33

Order of the Supreme Court, Bronx County (Hansel McGee, J.), entered April 14, 1987, which granted respondent’s motion to vacate a judgment of foreclosure, dismissed appellant’s foreclosure action, set aside a deed conveying title to appellant, and directed respondent to pay all taxes and interest owing on the subject premises, reversed, on the law and the facts, and respondent’s motion is denied, without costs. The City of New York appeals from an order entered in an in rem tax foreclosure action (Administrative Code of City of New York, tit 11, ch 4) which vacated a judgment of foreclosure granted on default against a Bronx parcel described as block 2411, lot 139, set aside the deed given the city pursuant to such judgment, and restored title to the parcel in the former owner, the respondent on this appeal, Babe Realty, Inc. Such relief was granted because, in the view of IAS, the city, in opposing the motion, did not produce proof that notice of the foreclosure action had been published in two newspapers and mailed to the owner of the affected parcel, as required by statute (Administrative Code § 11-406). While it is our view that the record does contain affidavits of publication and mailing sufficient to show compliance by the city with the notice requirements of in rem tax foreclosure actions, it also appears to us that IAS overlooked the effect of the deed conveying title to the city as presumptive evidence of the validity of the foreclosure action, including the regularity of any required notices (Administrative Code § 11-412 [c]). Thus, the burden was not on the city to show compliance with the notice provisions of the statute, but on Babe to show noncompliance. [438] This Babe failed to do. Its proof consisted of a denial of receipt of mail notice, insufficient by itself to rebut the presumption of receipt entailed in the presumption of regularity favoring the city (see, Nassau Ins. Co. v Murray, 46 NY2d 828), and a showing that the deed by which it took title to the affected parcel was recorded under an incorrect block and lot number, namely, block 2412, lot 39. We disagree with Babe that this recording error is evidence that it did not receive notice of the foreclosure action. The names and addresses of owners of delinquent parcels are ascertained by the city not be reference to some book recording deeds under a block and lot index, but to owner registration cards filed in the City Collector’s office, or, if a registration card is not on file, then to the latest annual record of assessed valuations (Administrative Code § 11-406 [c]). It is to the persons and addresses there indicated that the city sends the mail notice required by the statute, and thus, it is these records that must be discredited to make credible a claim that such a notice was not received. That the city’s records contained correct information concerning the name and address of the owner of the delinquent parcel located at block 2411, lot 139, and were not affected by the erroneous recording of the deed under a different block and lot number, is corroborated by the mailing list the city used in the foreclosure action, dated April 28, 1982. That list identifies Babe as having an interest in the parcel located at block 2411, lot 139, and assigns to it two mailing addresses, one at 651 Courtlandt Avenue, the street address of that parcel, and the other at 686 Courtlandt Avenue. While Babe’s papers on the motion did not explicitly indicate the address to which the city should have sent the notice of foreclosure, they do have attached, as an exhibit, Babe’s application for release of 651 Courtlandt Avenue after its acquisition by the city (Administrative Code § 11-424), dated April 29, 1986, which, as it happens, was written on a letterhead showing a business address at 686 Courtlandt Avenue. This is consistent with the deed conveying 651 Courtlandt Avenue to Babe, dated April 21, 1980 and erroneously recorded under block 2412, lot 39, which describes Babe as having a business address at 686 Courtlandt Avenue. That same deed describes the grantor, Victor Rosa, as having a residence at 651 Courtlandt Avenue. It therefore should not be a source of confusion that the city’s April 1982 in rem mailing list, which identifies Victor Rosa and Carmen Rosa as having an interest in the parcel located at block 2412, lot-39, assigns to the Rosas a mailing address at 651 Courtlandt Avenue, and that in May 1986 a foreclosure [439] notice concerning block 2412, lot 39 was mailed to Carmen Rosa at that address. All this indicates is that in May 1986, an individual named Carmen Rosa, residing at 651 Courtlandt Avenue, was shown on city in rem records to have an interest in block 2412, lot 39 going back to at least 1982. Absent further particulars, it simply appears that Victor Rosa continued to reside at 651 Courtlandt Avenue with Carmen Rosa after conveying title thereto to Babe, and that Babe continued to do business at 686 Courtlandt Avenue after taking tile to 651 Courtlandt Avenue. If that be so, and we are constrained to presume that it is, the city was correct to send a notice concerning block 2412, lot 39 to the Rosas at 651 Courtlandt Avenue, and such a notice would have been sent in addition to and not instead of any notices sent to Babe at 686 and 651 Courtlandt Avenue concerning block 2411, lot 139. The list of delinquent taxes mentioned by the dissent is indeed confusing, with its unexplained cross-outs and handwritten insertions, and entry of an "unknown” street designation for the affected parcel, be that parcel block 2411, lot 139 or block 2412, lot 39, but the confusion thereby created is dispelled by the clarity of the information conveyed in the mailing list. Moreover, the validity of an in rem tax foreclosure proceeding is not affected by "any omission or error of the commissioner of finance in including or excluding parcels from any such list [of delinquent taxes] or in the designation of a street or street number or by any other similar omission or error.” (Administrative Code § 11-405 [g].) In view of our factual finding that Babe was given notice of the foreclosure action, we find it unnecessary to pass upon the city’s alternative arguments that the relief sought by Babe can, as a matter of law, only be granted in the context of a plenary action to set aside the deed given the city, and not, as Babe seeks to do, by way of a motion in the foreclosure action to vacate the judgment granted the city therein (citing Town of Somers v Covey, 2 NY2d 250, cert denied and appeal dismissed 354 US 916); or that the relief sought cannot be granted even if the city did not give notice of the foreclosure action since the presumption that it did became conclusive upon Babe’s failure to commence a proceeding, regardless of its form, within two years of the taking of title by the city (citing Administrative Code § 11-412 [c]). Nor do we find it necessary to pass upon Babe’s rejoining argument that the city should be estopped from asserting this two-year time bar because of certain representations made to it by an unnamed city oificial relating to the time it had to redeem the parcel. [440] Concur — Asch, Rosenberger and Wallach, JJ. Sandler, J. P., concurs, and Kassal, J., dissents, each in a separate memorandum as follows: