DUVALL, MITCHELL, MTR. OF
CA 11-01162
| N.Y. App. Div. | Feb 17, 2012Background
- Petitioner challenged a foreclosure judgment and tax foreclosure deed in a city tax lien proceeding under Real Property Tax Law Article 11.
- Petitioner owned 135 Weld Street since 1964; taxes were levied for 2008-2009, notices sent by ordinary mail, and later delinquency notices included with the 2009-2010 bill.
- Petitioner made partial tax payments through January 2010; foreclosure commenced December 16, 2009; notices were mailed and published.
- Property was sold at foreclosure on March 19, 2010; tax foreclosure deed recorded April 29, 2010; petitioner received a 10-day quit notice May 6, 2010.
- Petitioner, illiterate, sought to vacate the judgment; respondent argued due process was satisfied by mailed notices to petitioner’s address.
- Supreme Court denied the vacatur; appellate division affirmed, with a dissent seeking vacatur and additional notice due to illiteracy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process was satisfied by mailed notices | Petitioner argues illiteracy requires alternative notice. | City properly mailed notices to petitioner’s address; notices were adequate. | Due process satisfied; notices reasonably calculated to apprise |
| Whether the court could vacate the default judgment under equity | Court should exercise equity to vacate given petitioner’s age and illiteracy. | No basis to vacate; petitioner bore responsibility for tax delinquency. | No vacatur; court did not err in denying application |
| Whether respondent should have provided alternative notice due to illiteracy | Respondent knew of illiteracy and must provide alternative notice. | No evidence of knowledge of illiteracy; ordinary mail suffices. | Not required; notices were reasonably calculated to inform |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (due process requires notice reasonably calculated to inform)
- Jones v. Flowers, 547 U.S. 220 (U.S. 2006) (due process requires reasonable notice under all circumstances)
- Weigner v. City of New York, 852 F.2d 646 (2d Cir. 1988) (ordinary mail notice generally sufficient for property rights)
- Covey v. Town of Somers, 351 U.S. 141 (U.S. 1956) (incompetent recipient requires more protective notice)
- Kennedy v. Mossafa, 100 N.Y.2d 1 (N.Y. 2003) (ownership bears responsibility for notice and tax default)
- Matter of Harner v County of Tioga, 5 N.Y.3d 136 (N.Y. 2005) (case-by-case balancing of municipality and owner interests in notice)
- Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (U.S. 1983) (ability to safeguard interests does not relieve government obligation)
- Robinson v. Hanrahan, 409 U.S. 38 (U.S. 1972) (notice insufficient when owner cannot receive notice due to confinement)