Josephine WEIGNER, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Appellee.
No. 570, Docket 87-7743
United States Court of Appeals, Second Circuit.
Argued Jan. 28, 1988. Decided July 14, 1988.
852 F.2d 646
10. On April 13, 1985 I conducted a surveillance of the wedding of Fogarty in Newport, Rhode Island. At said wedding I observed a vehicle registered to Michael Kelly of North Miami, Florida. This is a known alias of William McCann a co-defendant of Fogarty in the above-mentioned Florida indictment. I also observed at the said wedding vehicles registered to other major cocaine dealers from Connecticut.
11. I am advised by Special Deputy U.S. Marshal Lisa Silvestro that she has periodically been contacted by an anonymous individual hereinafter referred to as Source #3. Source #3 is extremely knowledgeable concerning the drug operation headed by Coady and Fogarty. Much of his information has been corroborated by other informants and surveillances. In January, 1986 Source #3 advised Silvestro that Fogarty was then in Florida negotiating a cocaine transaction.
12. Fogarty has been under investigation with varying intensity by DEA since at least 1978. During that period of time I have been unable to discover any legitimate source of income for him. He has been listed as an officer and/or shareholder of several corporations. Only one corporation known to me has performed any legitimate work. That corporation is the Dutch Cove Development Corporation. As noted in paragraph 4 above, it has apparently been out of business for many years and Fogarty‘s reported income from 1974 through 1977 does not justify his purchase of the “Property“.
13. Fogarty although a fugitive is presently attempting to sell the “Property” for $550,000. His aunt, Ida Ambrosia, of South Kingston, Rhode Island apparently has the power of attorney to sell the “Property“. On May 1, 1986 I attempted to interview Ambrosia and upon identifying myself she slammed the door in my face. Despite having apparently no legitimate income, Fogarty has continued to made mortgage payments on the land from the time of its purchase up to the present time.
WHEREFORE, there is probable cause to believe that the “Property” as more fully described above is the proceeds of violations of
(s) Daniel J. McCarthy
DANIEL J. MCCARTHY
Special Agent
Drug Enforcement Administration
Ronnie Dane, New York City (Peter L. Zimroth, Corp. Counsel, Pamela Seider Dolgow, Angelo Aiosa, Susan M. Shapiro, New York City, on the brief), for defendant-appellee.
Before OAKES, NEWMAN, and MINER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
Josephine Weigner appeals from a judgment of the District Court for the Eastern District of New York (Henry Bramwell, Judge) granting summary judgment against her in a diversity suit challenging the constitutional validity of tax lien foreclosure procedures of the City of New York. Weigner argues that the notice by first-class mail furnished pursuant to the City‘s Administrative Code was inadequate under the Due Process Clause of the Four-
Background
Josephine Weigner is a resident of Florida. Between 1959 and 1962 she acquired a group of 14 vacant parcels of land in South Jamaica, Queens, New York. Weigner failed to pay property taxes on the lots beginning in 1977. On October 1, 1981, the City of New York commenced an in rem tax foreclosure action against all real property in Queens on which real estate taxes had not been paid for a year or more. Weigner‘s 14 lots were among the 5,229 parcels in this proceeding. At the time the action was commenced, Weigner owed approximately $31,000 in back taxes. The market value of the 14 lots is estimated by the parties to be between $151,000 and $250,000.
Pursuant to the City‘s Administrative Code, notices of the commencement of the tax foreclosure action were mailed to Weigner at her home in Florida. The City had Weigner‘s address because she had filed with the Commissioner of Finance an “in rem card,” which enables the City to mail a notice to the designated address in the event that properties listed on the card are included in an in rem tax foreclosure action.
The “Notice of Foreclosure” sent to Weigner was a form letter that apprised “[a]ll persons having or claiming to have an interest in the real property” described on a list of tax delinquent parcels, that a foreclosure action had been commenced against the parcels. The notice indicated that the property could be redeemed on or before December 18, 1981. The notice further stated that anyone who failed to redeem his property would be “forever barred and foreclosed” of any right in the property “except for the remedies provided in Sections D17-7.0(c) and D17-25.0 of the Administrative Code.” Section D17-7.0(c) (now renumbered as
Weigner failed to redeem her property by the December 18, 1981, deadline, nor did she request a late redemption. On March
Weigner initiated the present suit on October 22, 1986. Her complaint alleged that she received inadequate notice of the foreclosure proceeding and that by denying her release applications the Board of Estimate discriminated against her as an out-of-state resident and otherwise abused its discretion. The District Court granted summary judgment for the City. 668 F.Supp. 135 (E.D.N.Y.1987). The Court found that due process was satisfied because Weigner actually received notices of foreclosure.3 The District Court further concluded that Weigner‘s equal protection claim lacked a factual basis and that the Board of Estimate had not abused its wide discretion under state law in denying her release applications.
Discussion
A. Notice
Weigner contends that summary judgment was improper because there is a disputed issue of material fact as to whether she received the notices of foreclosure that were sent to her. Though Weigner conceded in an affidavit that she received “some tax bills and other form letters from the City of New York” regarding the delinquent parcels, she denied receiving “proper notice” and now claims that she never received the notices of foreclosure. She argues that this is an issue of material fact because the notice provided by the Administrative Code was constitutionally insufficient unless received. Her claim raises the issue whether due process requires that notice of a tax lien foreclosure must not only be mailed to a property owner but also must be received.
Generally, when litigation is initiated to deprive individuals of their property, due process is satisfied by “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 9 L.Ed. 865 (1950) (emphasis added); accord Mennonite Board of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 2709, 77 L.Ed.2d 180 (1983). The proper inquiry is whether the state acted reasonably in selecting means likely to inform persons affected, not whether each property owner actually received notice. As long as the state employs means “such as one desirous of actually informing the [properly owner] might reasonably adopt to accomplish [that purpose],” then it has discharged its burden. Mullane, supra, 339 U.S. at 315, 70 S.Ct. at 657. “The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected ....” Id. Importantly, the state‘s obligation to use notice “reasonably certain to inform those affected” does not mean that all risk of non-receipt must be eliminated: “Now and then an extraordinary case may turn up,
The Supreme Court has frequently said and just recently restated that, under most circumstances, notice sent by ordinary mail is deemed reasonably calculated to inform interested parties that their property rights are in jeopardy. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 484, 490, 108 S.Ct. 1340, 1343, 1347, 99 L.Ed.2d 565 (1988); Mennonite Board of Missions v. Adams, supra, 462 U.S. at 800, 103 S.Ct. at 2712; Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 659. The mails are an “efficient and inexpensive means of communication” that generally may be relied upon to deliver notice where it is sent. Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 660. In the context of a wide variety of proceedings that threaten to deprive individuals of their property interests, the Supreme Court has consistently held that mailed notice satisfies the requirements of due process. See, e.g., Tulsa Professional Collection Services, Inc. v. Pope, supra, 485 U.S. at 491, 108 S.Ct. at 1345 (notice to creditors in probate proceedings); Mennonite Board of Missions v. Adams, supra, 462 U.S. at 799-800, 103 S.Ct. at 2711-12 (notice to mortgagee of tax foreclosure); Greene v. Lindsey, 456 U.S. 444, 455, 102 S.Ct. 1874, 1880, 72 L.Ed.2d 249 (1982) (notice to public housing tenants of forcible entry and detainer actions); Schroeder v. City of New York, 371 U.S. 208, 214, 83 S.Ct. 279, 283, 9 L.Ed.2d 255 (1962) (notice of condemnation proceeding); Walker v. City of Hutchinson, 352 U.S. 112, 116, 77 S.Ct. 200, 203, 1 L.Ed.2d 178 (1956) (notice of condemnation proceeding); Mullane, supra, 339 U.S. at 319, 70 S.Ct. at 659 (notice to trust beneficiaries of judicial settlement of trust accounts). Though the mails are not one hundred percent reliable, none of these cases requires actual receipt of notice that is properly mailed. See, e.g., Schroeder v. City of New York, supra, 371 U.S. at 214, 83 S.Ct. at 283 (City‘s duty to notify property owner of condemnation proceeding was “an obligation which the mailing of a single letter would have discharged“) (emphasis added).4
Weigner contends that she was constitutionally entitled to notice by certified mail, return receipt requested. No doubt that form of notice would have advantages. The signed receipt would provide virtually conclusive evidence that the notice was received, thereby permitting proof of receipt, if thought to be constitutionally required, to be established on a more substantial basis than simply weighing the inferences from mailing against the property owner‘s denial. Moreover, the delivery and request for signature of a return receipt would alert the property owner to the fact that the letter contains something of more than routine interest. Indeed, a substantial argument could be made for using such notice for a variety of important items now sent by ordinary first-class mail, for example, the notice from a district court of entry of a judgment, see
However, in deciding what the Constitution requires, we are not free to select forms of notice simply because they are advantageous. Even if beneficial, means of notice beyond those reasonably calculat-
In the circumstances of the pending case, the small risk that the notice sent by first-class mail would not arrive is acceptable for two reasons. First, the mailing was not the only device relied upon to give notice. The City published foreclosure notices once a week for six successive weeks in the City Record and in two newspapers circulated throughout Queens County. See
Even if Weigner did not actually receive the initial notices of foreclosure, the City‘s failure to send additional notice of the release periods was not constitutionally deficient. By the time the mandatory release period lapsed in July 1984, Weigner had failed to pay taxes on her property for over seven years. When the discretionary release period lapsed in March 1986, she had been tax delinquent for almost ten years. Weigner concedes she was aware of her delinquency by virtue of tax bills and other letters the City sent. She should have realized that her failure to pay taxes for such a long period of time would result in a foreclosure, and she could easily have contacted the City at any time to determine the status of her property and to take steps to protect it. In short, the likelihood of the City proceeding against Weigner‘s property was so certain from the circumstances of her tax delinquency that additional written notice of deadlines to avoid foreclosure was unnecessary. In an analogous context, this Court has held that the failure of the court clerk to mail notice to litigants of the filing of an order in the district court does not relieve a party from complying with deadlines running from the filing of such an order because a party to litigation ought to anticipate the filing of such orders. See Wakefield v. Northern Telecom, Inc., 813 F.2d 535, 541-42 (2d Cir.1987) (time to file bill of costs);
In addition to her constitutional claim, Weigner contends that the notice provided by the City was inadequate under state law. Specifically, Weigner asserts that she should have been furnished with a summons and complaint as provided for in the
The rule of construction of tax statutes has been entrenched that city charter provisions describing form and procedure should be preferred to the general provisions of the tax laws; only when the city charter is silent as to form and procedure is resort to be made to the general tax laws; and when both the city charter and State tax laws are silent, the provisions of the CPLR or comparable practice statutes may then be applied.
Stevens Medical Arts Building v. City of Mount Vernon, 72 A.D.2d 177, 181-82, 424 N.Y.S.2d 230, 233 (2d Dep‘t 1980); see McCann v. Scaduto, 71 N.Y.2d 164, 171 n. 2, 524 N.Y.S.2d 398, 400 n. 2, 519 N.E.2d 309, 311 n. 2 (1987); People ex rel. Savory, Inc. v. Plunkett, 295 N.Y. 180, 182-83, 66 N.E.2d 46 (1946);
Weigner contends that the Board of Estimate‘s denial of her release application was improper. Primarily, she argues that the denial was unlawful because other applicants “less worthy” than she were granted releases. She also alleges that the Board discriminated against her as an out-of-state resident, and she even suggests that the Board denied her application because she refused to pay bribes. We agree with the District Court that these contentions are without merit.
The Board of Estimate has virtually unlimited discretion under
The Board acted within its discretion in denying Weigner‘s application. At the time of the Board‘s consideration, the property had been tax delinquent for over nine years, and Weigner had no explanation as to why she had failed to pay other than that payment had become “financially inexpedient.” Moreover, Weigner did not occupy the property, nor did she have any plans to develop it in a useful way. Finally, the City was considering using the land for a housing program. Under these circumstances, the Board was fully justified in denying the release.
We reject Weigner‘s remaining claims for substantially the reasons set forth in the District Court‘s opinion. The Board was entitled to consider the fact that Weigner was an absentee landowner, and there is no evidence that the Board discriminated against her because she was an out-of-state resident as opposed to an absentee owner who lived within the state. Similarly, Weigner‘s claim that her release application was denied for failure to pay bribes or for other improper motives is wholly unsupported in the record.
The decision of the District Court granting summary judgment to the City of New York is affirmed.
OAKES, Circuit Judge (dissenting):
I dissent.
I believe that the procedures followed by New York City in conducting tax foreclosure sales are constitutionally invalid for two reasons. First, the City‘s Administrative Code does not give a landowner sufficient notice of foreclosure proceedings. Second, the “release” provisions, which place the approval of certain applications wholly within the “discretion” of the Board of Estimate, are totally arbitrary. Here both deprived Weigner of procedural due process and of equal protection of the laws.
Recently the New York Court of Appeals considered a somewhat similar question in McCann v. Scaduto, 71 N.Y.2d 164, 524 N.Y.S.2d 398, 519 N.E.2d 309 (1987). There the court found unconstitutional the Nassau County tax foreclosure system, which provided notice of the tax lien sale itself only by publication and had no requirement for actual notice until three months before the redemption period expired. In a compelling opinion by Judge Kaye, the court concluded that the tax lien sale “creates ‘momentous consequences’ for the homeowner,” and that “[a]ctual notice” of it is required. Id. at 177, 524 N.Y.S.2d at 404, 519 N.E.2d at 314-15. Judge Kaye‘s opinion did not specify that “actual” notice need be by registered or certified mail; however, in light of both the evolving due process standards for adequacy of notice and the practical realities of being a postal patron in the late 1980s, I would take the further step of requiring that actual notice consist of personal service, registered or certified mail, or, at a minimum, of service by first class mail with a return envelope, postage prepaid and addressed to the sender, as specified in
Judge Kaye‘s opinion in McCann ably recounts that trend. Starting with Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court rejected any rigid distinctions between in rem and in personam proceedings, id. at 312-13, 70 S.Ct. at 656-57, and articulated that “[a]n elementary and fundamental requirement of due process ... is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,” id. at 314, 70 S.Ct. at 657, and that “[t]he means employed must be such as one desirous of actually informing the absentee might rea-
Several lower courts have acknowledged that certified or registered mail is preferable to first class mail as a means of notice because the certified or registered mail, if signed for, guarantees receipt, see Stateside Mach. Co. v. Alperin, 591 F.2d 234, 241 (3d Cir.1979), superseded by statute as explained in Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 17-18 (3d Cir.1985) (state rules now require service of process by certified or registered mail), and provides documentary evidence of receipt. United States v. Smith, 398 F.2d 173, 177 (3d Cir.1968). In recognition of these advantages, registered or certified mail is now the preferable means for notice in a variety of contexts, not only in New York. For example, several states require notice by registered or certified mail before tax foreclosure, e.g.,
The facts of this case show why notice by certified or registered mail is necessary. Here the parties dispute whether the notice was ever received. Weigner, a widow living in Florida, owned property in a rundown section of Queens. She had paid her taxes up to 1977 (and 1980 as to one parcel) except for a brief period when she held the property as mortgagee, having sold it to an unsuccessful developer, and even then she paid back taxes when she reacquired it from the buyer. Actual arrearages were only $9,259, although $21,927 in interest, subsequent taxes, penalties, etc., was owed on the property which was worth, in the 1980s, $183,000 according to the City and more than $250,000 according to Weigner. The notice (which she does not remember receiving) was a form letter on which her name does not appear, her pieces of property are not specified, and the word “summons” is conspicuously absent. The form “notice of foreclosure” simply refers to “In Rem Tax Foreclosure Action No. 38” in the Borough of Queens and says that the Com-
In our current society, when our mailboxes are usually full of quite sophisticated, and often personalized, “junk mail,” it is not unlikely that the form letters sent by the City were simply thrown away by Weigner. Similarly, the fact that she allegedly received thirteen such notices might have led her to disregard all of them because there were so many. More importantly, had she opened the letters and worked her way through the somewhat abstruse and tortured legalese, she might not have realized that it was in fact a summons that she had received. (I note that had she been the out-of-state recipient of a summons announcing the start of a legal action, she would have been entitled to personal service.
The other basis for unconstitutionality of the city foreclosure procedures is more direct. New York City Administrative Code section 11-424(g) permits the Board of Estimate in its “discretion” to authorize the “release” of the City‘s interest in the property foreclosed to the taxpayer who properly applies and pays all due charges during the period from four months to twenty-four months after the deed of foreclosure is recorded. (For the first four months there is a mandatory release.) The only restraint on this discretion is that it cannot be exercised if the City has sold or disposed of the property, if the property has been condemned or assigned to any agency of the City, or if it is the “subject of contemplated use for any capital or urban renewal project of the city.” Weigner duly filed her applications for release but, according to the City‘s affidavit in support of its motion for summary judgment, she was turned down because the vacant land was “on disposition hold” because it was submitted to the Mayor‘s office as “potential Affordable House Sites” and because she lacked any plans for the sites.
To my mind, despite the City‘s admirable goal of using the foreclosed land for affordable housing, the untrammeled discretion of the Board makes the City‘s action arbitrary. To be sure, it can be argued that the period for the “release” application could be shortened, for example, to four months, and that would eliminate the problem of arbitrariness. But I rather thought the right-privilege distinction had been interred,2 or at the very least that when government agencies take actions affecting valuable property rights there must be standards for the exercise of administrative discretion. Judge Henry Friendly spoke of the need for such standards as
Here, I believe that the actions of the Board were arbitrary. The lack of standards, coupled with the fact that the Board is not required to give its reasons for its ultimate decision, creates a situation where an applicant must guess at the arguments to be made to the Board, and will often never know why an application has been accepted or denied. Weigner‘s complaint made out a colorable claim of arbitrariness, and she should have been allowed discovery on the question of whose applications were approved and whose were not. The practical result of this case is that the City of New York, through suspect procedures and arbitrary administrative actions, has gained possession of property worth between $183,000 and $250,000, because an elderly out-of-state widow failed timely to pay less than $10,000 in property taxes. Because the City has failed to live up to its constitutionally-mandated duties, I dissent.