Order to Show Cause, dated Notice of Cross Motion, dated Affirmation in Reply & Opposition to Cross Motion, dated

Transcription

1 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Acting Justice Supreme Court x A TFH REAL PROPERTY, LLC., -against- Plaintiff, PRUDENTIAL MORTGAGEE CO., INC., et ai, Defendants x TRIAL PART: 50 INDEX NO. : /05 MOTION DATE:7- SUBMIT DATE: SEQ. NUMBER MOTION DATE: SUBMIT DATE: SEQ. NUMBER The following papers have been read on this motion: Order to Show Cause, dated Notice of Cross Motion, dated Affirmation in Reply & Opposition to Cross Motion, dated Reply Affirmation(cross motion), dated Upon the foregoing papers it is ordered that this motion by the plaintiff to appoint a temporary receiver is granted and the cross motion by the defendant Beth A. Ross to dismiss the action and for sanctions is denied in its entirety. Plaintiff is directed to submit an order appointing a receiver within 30 days of the date of this order, on notice to all appearing defendants. This is an action to compel determination of claims to real propert and to establish the regularity of a tax lien sale with respect to propert located in the Vilage of Hempstead

2 New York. The propert was acquired by plaintiffs predecessor interest by way of a tax deed from the Treasurer of Nassau County. Because the cross motion seeks dismissal of the action, it wil be addressed first. It is not disputed that defendant Ross has not answered the amended complaint, fied November , and undisputedly served upon her personally, but rather has responded only by way of a notice of appearance. Because the pleading was served with the summons service of the notice of appearance, standing alone, is insufficient and can lead to a default (see Gau Kramer 289 AD2d 804 (2001)). By stipulation "so ordered" by the Court, Ms. Ross was given until June 14, 2006 to answer or move with regard to the amended complaint, but did not do so within that period, and did not seek an additional period oftime from the Court. Consequently, she is presently in default under the "so ordered" stipulation, and has not sought to be relieved of that default as part of her cross motion (CPLR 50l5(a)). Accordingly, the motion to dismiss should be denied as a matter of standing. 1 It would be denied on the merits in any event. With regard to those branches ofthe cross motion that are to dismiss, two grounds are asserted. The first is that the tax deed is void ab initio because it can be given only for nonpayment of general but not school taxes, and the deed reflects that it is based on both. This finds no support in the Nassau County Administrative Code ("Code ). Indeed, the Code provides that the County Treasurer receives the return of unpaid school district taxes from 1 To prevent additional motion practice, however, the Court informs the parties to these applications that in view of the involvement of Ms. Ross to this point in the litigation, a motion by her to compel acceptance of a late answer would be granted - provided she interposes such an answer within 20 days of the date of this order.

3 town and city receivers of taxes (Nassau County Administrative Code 23.0), and that the Treasurer may collect "every tax upon real estate, including a school district tax returned by the receiver of taxes as unpaid... by sale of the tax lien thereof unless the County Treasurer shall have brought an action pursuant to section of the code. In such event, he nevertheless may sell the tax lien " (Nassau County Administrative Code 33.0(a)). Accordingly, there is no basis for dismissal on this ground. The second ground is that Southern Pacific Bank, alleged to be a mortgage holder of the subject propert, was not named or served. This entity apparently is in receivership and is now under the control of the Federal Deposit Insurance Corporation (see 12 USC 1821). However, this means no more than that its interest in the propert wil not be extinguished by the judgment; a state court stil has jurisdiction to adjudicate the rights ofthe parties to the action on the tax lien (see First State Bank-Keene Metroplex Petroleum, Inc. 155 F3d 732 (1998)). Although Ms. Ross is correct that FDIC consent is needed before its interest may be foreclosed, this does not mean that the tax liens may not attach and that a state court action cannot go forward (see S&R Assocs. Lynn Realty Group, 338 N.J. Super , 769 A. 2d 413 (2001 J; see also National Heritage Life Ins. Co. TJ. Props. Co. 286 AD2d 715 (2001)). The remaining branches ofthe cross motion are to deny the relief sought in the main motion (not a form of affirmative relief, and hence not appropriately framed as a separate application), and for fees and costs. Aside from motion costs, which may be awarded to a victor on a motion in an amount not to exceed $100 (CPLR 8202), Ms. Ross must be able to demonstrate that the Court has grounds to award the attorneys fees sought under Part 130 of

4 the Uniform Rules. To do so, it is not enough to prove that the plaintiff should lose on the merits; there must be a demonstration that the action and/or motion was or were "frivolous as that term is described in the Rules. No such demonstration is made, and indeed the analysis of the branches of her cross motion that are to dismiss suggests the reverse. Having so found, however, the Court agrees with the cross movant that she should receive a statement of the sums necessary to redeem. The Code provides that in an action which has its goals establishing the regularity of a tax sale and title to real estate resulting therefrom "any defendant shall have the right, and the plaintiff must in such action specially plead that he extends such right to such defendant, to set aside the deed of the County Treasurer and to satisfy the tax lien on which such deed was based by making a satisfaction pursuant to the terms of section of the code as if no deed had been issued" and such satisfaction includes necessary disbursements made by the plaintiff (Nassau County Administrative Code ~ (d)). The cross-moving defendant has complained that she has not received a statement of the amount necessary to redeem the propert and set aside the tax deed. That statement should be provided by the plaintiff, as the Code-mandated offer contained in the amended complaint means little without it. While the plaintiffs attorney states in his opposition that the proper person to advise as to amounts due is the County Clerk' s office, only the plaintiff can provide a statement of its own disbursements. It appears that such a statement could legitimately be sought during discovery in any event. Any statement of disbursements should be itemized, but there is no need to provide documentary or other "backup" for any particular item unless a good faith showing can be made that it well beyond what is reasonable. Any dispute shall be resolved by the Court on motion.

5 The motion for appointment of a temporary receiver is granted. A receiver is available "where there is danger that the propert wil be removed from the state, or lost materially injured or destroyed" (CPLR 6401). The facts alleged here are that the firstnamed defendant, Prudential Mortgagee Co., Inc., n/k/a Amerifirst Mortgage Corp. described as the current title holder, is collecting rents from tenants but is not paying the taxes or other charges on the propert. The failure to pay taxes or other charges necessary to maintain the integrity of the realty, left unchecked, can result in material injury to the subject propert and the interests of those with an interest therein, including the plaintiff, and justifies the appointment (see Friedman v. Ragin 228 AD2d 642 (1996J; Lefebvre v. Shea 212 AD2d 884 (1995)). Further, and significantly, the title holder/defendant has not opposed this application. The only opposition comes from defendant Ross, who has not demonstrated how her own mortgage interest wil be adversely affected by the appointment. This shall constitute the Decision and Order of this Court. DATED: August ENTER TO: Mark Bradley Roth Attorney for Plaintiff 55 Post Avenue Westbury, NY Beth A. Ross Defendant, Pro Se One Park Circle Great Neck, NY HON. DANIEL PALMIERI Acting Supreme Court Justice EN,.EREO co\.. H,rr-( 1\ \J COUNTY S Off\CE

6 Tobin and Demph, LLP Attorneys for Defendant St. Bernard' s Catholic Church Cohoes of New York 33 Elk Street Albany, NY Lorna B. Goodman Nassau County Attorney Attorneys for defendant County of Nassau 1 West Street Mineola, NY Eliot Spitzer, Attorney General of the State of New York Attorney for Defendants State of New York and Dept. Of Taxation and Finance 300 Motor Parkway, Ste. 125 Hauppauge, NY Roisicki, Rosicki & Associates, P. Attorneys for Defendant Prudential Mortgagee n/k/a Amerifirst Mortgage One Old Country Road, Ste. 200 Carle Place, NY 11514