Johnson v. County of Erie

Appeal from an order of Supreme Court, Erie County (Mahoney, J.), entered May 23, 2002, which, inter alia, denied plaintiff’s motion for summary judgment and granted the cross motion of defendant County of Erie for summary judgment dismissing the complaint against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking judgment vacating a judgment of foreclosure and sale and vacating the Referee’s deed conveying property previously owned by plaintiff and her husband to defendant Bernard W. Davis. Supreme Court properly denied plaintiff’s motion for summary judgment and granted the cross motion of defendant County of Erie (County) for summary judgment dismissing the complaint against it. The County presented proof that notice of the foreclosure was sent to plaintiff and her husband at the subject property, thus giving rise to the presumption that plaintiff received the notice (see Law v Benedict, 197 AD2d 808, 810 [1993]; Best v City of Rochester, 195 AD2d 1073, 1074 [1993]). The denial by plaintiff that she received the notice, without more, is insufficient to rebut the presumption (see Matter of Foreclosure of Tax Liens, 216 AD2d 932 [1995]; Best, 195 AD2d at 1074). Further, under the circumstances of this case, we conclude that the notice sent jointly to plaintiff and her husband at the subject property was “ ‘reasonably calculated, under all the circumstances, to apprise’ [plaintiff] of the foreclosure action,” and thus satisfied the requirements of due process (Kennedy v Mossafa, 100 NY2d 1, 9 [2003], quoting Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]; cf. Masick v City of Schenectady, 164 AD2d 488, 490-491 [1991]). Present — Green, J.P., Pine, Wisner and Hayes, JJ.