Harville v. County of Erie

Judgment affirmed without costs. Memorandum: On January 8, 1988, the County of Erie sent a notice of foreclosure of tax liens by certified mail, return receipt requested, to petitioner at his home address. The United States Postal Service attempted two deliveries of the letter. On each occasion a notice was left informing the addressee that a certified letter addressed to him could be claimed at a designated post office. The unclaimed letter was returned to the county on January 23, 1988. On June 9, 1988, the county conducted an in rem tax foreclosure sale of two properties owned by petitioner. Petitioner commenced this proceeding to set aside and vacate the judgment of foreclosure and sale of his properties, alleging that he never received notice. He asserted that the county did not comply with the notice provision of the Erie County Tax Act (art XI, § 11-13.0) because it mailed the notice of foreclosure of tax liens by certified mail rather than by ordinary mail. Petitioner did not assert that he never received the notices regarding the certified letter that were left at his home address. Moreover, he has not asserted a constitutional due process challenge to the notice provisions of the Erie County Tax Act. In other words, petitioner has not contended that the mode of mailing used by the county was not "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 Trust Co., 339 US 306, 955 314; see, Mennonite Bd. of Missions v Adams, 462 US 791, 799). The court dismissed the petition and we now affirm. The sole issue raised by petitioner is whether the county complied with the notice requirements of its Tax Act when it sent the notice of the tax foreclosure by certified mail, return receipt requested. The Erie County Tax Act (art XI, § 11-13.0) requires that a copy of the notice shall "be mailed to the last known address of each owner of property affected thereby”. The Act does not mandate a specific mode of mailing the notice to property owners. We conclude, therefore, that the manner of mailing used by the county constituted compliance with the Act. The dissent is grounded on a constitutional due process argument that was never raised by petitioner and, therefore, is not properly before us (see, Tumolillo v Tumolillo, 51 NY2d 790; Arvantides v Arvantides, 106 AD2d 853, 854, mod 64 NY2d 1033; City of Rochester v Chiarella, 86 AD2d 110, affd 58 NY2d 316; Marine Midland Bank-Central v Gleason, 62 AD2d 429, affd 47 NY2d 758; 4 NY Jur 2d, Appellate Review, § 117). Nonetheless, in our view, the method of mailing the notice of foreclosure used here by the county not only complied with the Act, but was a method "reasonably calculated” to apprise property owners of the pendency of the foreclosure action. The constitutional command for due process requires no more. Personal notice is always adequate, but it is not indispensable in all circumstances. Due process requires only that the notice be appropriate to the nature of the case without creating impossible or impracticable obstacles to concluding the proceedings (see, Mullane v Central Hanover Trust Co., supra, at 313). All concur, except Green, J., who dissents and votes to reverse, in the following memorandum.