15 N.Y.3d 485
NY2010Background
- RTF purchased Roslyn property in 1998 with a purchase-money mortgage to the Boy Scouts for $1.2 million.
- Foreclosure action against RTF commenced by Boy Scouts in May 2002; notice of pendency filed and later expired without renewal.
- In December 2003, RTF transferred most property to Roslyn Gate; RTF defaulted on taxes and failed to apply for tax-exempt status.
- In February 2005, Nassau County issued a tax lien to Gillen Living Trust (Jumbo Investments) on the entire parcel; Gillen did not serve Kese’s foreclosure attorney or the foreclosure referee.
- Gillen obtained a tax deed via nonrenewed notice, then transferred the property to Siat Foundation; Kese and Roslyn Gate sought to void the tax deed and recover redemption rights.
- Supreme Court voided the tax deed and related transfers, but the Appellate Division relied on Hua Nan to treat the mortgagee’s attorney as a “legal representative.” The Court of Appeals ultimately reversed and remitted for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ‘legal representative’ includes a party’s attorney. | Gillen’s attorney was a ‘legal representative’ under 5-51.0. | ‘Legal representative’ means executors/administrators, not attorneys. | No; attorney is not a legal representative. |
| Whether the court-appointed referee is a party entitled to notice under 5-51.0. | Referee, as a party of interest, requires notice. | Referee has no independent legal interest; acts as court agent. | Referee is not an interested party for notice. |
| Whether Gillen properly served notice under 5-51.0 (a). | Failure to serve Kese’s attorney voids the tax deed. | Gillien complied with §5-51.0 by serving the appropriate recipients. | Gillen’s service complied; tax deed not void. |
| Impact of 5-51.0’s structure on notice to attorneys vs. executors. | Statutory text includes all “heirs, legal representatives” broadly. | Text mirrors traditional meaning; does not include attorneys. | Text reflects traditional meaning; attorneys excluded. |
Key Cases Cited
- Hua Nan Commercial Bank v Albicocco, 270 AD2d 265 (2000) (foreclosure notice to attorney not required under ordinary interpretation of 5-51.0)
- Sulz v Mutual Reserve Fund Life Assn., 145 NY 563 (1895) (legal representatives ordinarily executors/administrators)
- Griswold v Sawyer, 125 NY 411 (1891) (meaning of ‘legal representatives’ aligned with executors/administrators)
- Matthews v American Cent. Ins. Co., 154 NY 449 (1897) (expounds ordinary meaning of ‘legal representatives’)
- Greenwood v Holbrook, 111 NY 465 (1888) (limits on extending ‘legal representatives’ to attorneys)