In the Matter of Cherylann Barnes, as Executor of William Alexander, Deceased, Appellant, v James P. McFadden, as Treasurer of Tioga County, et al., Respondents.
Supreme Court, Appellate Division, Third Department, New York
25 AD3d 955 | 809 NYS2d 241
Prior to his death, decedent was the owner of certain real property located in the Town of Spencer, Tioga County. In 1995, decedent went to live with petitioner, his daughter, and her husband in New Jersey and, from that point forward, tax notices were sent to decedent at petitioner‘s address. According to petitioner, she contacted respondent James P. McFadden, the Tioga County Treasurer (hereinafter respondent), on several occasions to request third-party notification of tax bills and other mailings related to decedent‘s property but was advised that respondent‘s office did not engage in third-party notifications.
Although petitioner and her husband paid the taxes on decedent‘s property for a number of years beginning in 1996, the taxes for 2002 and 2003 were not paid. As a result, in December 2003, respondent sent a notice of foreclosure via certified mail, return receipt requested, to decedent at petitioner‘s address. The record reflects that petitioner‘s then 16-year-old daughter signed the receipt and handed the package to decedent, who by then had been diagnosed as suffering from dementia. Decedent, who died in February 2004, apparently did not pass the foreclosure notice along to petitioner and, accordingly, the taxes remained unpaid and the property was foreclosed upon in May 2004.
Following an unsuccessful attempt to redeem the property, petitioner commenced this proceeding pursuant to
Petitioner contends that inasmuch as she repeatedly requested third-party notification of decedent‘s tax bills, paid the taxes on decedent‘s property for a number of years and was the sole beneficiary under the terms of decedent‘s will, she was an “interested person” for purposes of the foreclosure proceeding and, as such, was entitled to due process. For the reasons that follow, we are satisfied that the relevant due process standards were met here and, accordingly, affirm Supreme Court‘s judgment dismissing petitioner‘s application.
“It is well settled that the requirements of due process are satisfied where ‘notice [is] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objec
“each owner by certified mail and any other person by ordinary first class mail whose right, title, or interest was a matter of public record as of the date the list of delinquent taxes was filed . . . [and to] any other person by ordinary first class mail who has filed a declaration of interest pursuant to [
RPTL 1126 ] which has not expired.”
Here, decedent received actual notice of the foreclosure proceeding via certified mail at petitioner‘s address. Additionally, respondent sent a copy of the foreclosure notice to that address via regular first-class mail, which was not returned, thereby giving rise to the presumption that such notice was in fact received (see Franzone v Quinn, 303 AD2d 812, 814 [2003]).1 Moreover, the record fails to disclose that respondent knew or should have known that decedent allegedly was incompetent. Under such circumstances, the procedures utilized by respondent to provide decedent with notice of the foreclosure proceeding plainly satisfied the requirements of due process.
As to petitioner‘s alleged right to such notice, we note at the outset that because petitioner‘s interest in the property at issue did not arise until after decedent‘s death, she plainly was not an “interested person” within the meaning of
Cardona, P.J., Mercure and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.