In re Foreclosure of Tax Liens

Before property may be sold in a foreclosure sale, the owner is entitled to actual notice of the sale (see, Matter of McCann v Scaduto, 71 NY2d 164, 177). The petition alleges that the County mailed the notice to petitioner’s former address, although petitioner’s new address was a matter of public record. Because the County did not submit any evidence in response to the petition, the allegations of the petition must be taken as true (see, Kissell v County of Erie, 138 AD2d 965, 965-966; Kornowski v County of Erie, 75 AD2d 1019). Those allegations, along with documentary evidence submitted by petitioner, demonstrate that petitioner was not provided with actual notice of the foreclosure sale, and thus the judgment of foreclosure and sale must be set aside. We remit the matter to Erie County Court to set reasonable conditions upon which petitioner may redeem his property. (Appeal from Order of Erie County Court, Rogowski, J. — Vacate Tax Foreclosure and Sale.) Present— Denman, P. J., Green, Fallon, Callahan and Doerr, JJ.