        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

353
CA 12-01666
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF THE FORECLOSURE OF TAX LIENS
BY PROCEEDING IN REM PURSUANT TO ARTICLE 11
OF THE REAL PROPERTY TAX LAW BY COUNTY OF         MEMORANDUM AND ORDER
HERKIMER, PETITIONER-RESPONDENT;
-------------------------------------------
MERRIANNE MOORE, RESPONDENT-APPELLANT.


FELT EVANS, LLP, CLINTON (JUSTIN M. NACKLEY OF COUNSEL), FOR
RESPONDENT-APPELLANT.

ROBERT J. MALONE, COUNTY ATTORNEY, HERKIMER (LORRAINE H. LEWANDROWSKI
OF COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County
(Norman I. Siegel, A.J.), entered November 17, 2011. The order denied
the motion of respondent to vacate a judgment of foreclosure and for
other relief.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this in rem tax foreclosure proceeding pursuant
to RPTL article 11, respondent appeals from an order denying her
motion to vacate a judgment of foreclosure. Respondent contends that
Supreme Court should have granted the motion because petitioner failed
to comply with the notice requirements of RPTL 1125. We agree with
petitioner, however, that respondent’s motion was untimely. “A motion
to reopen a default judgment of tax foreclosure ‘may not be brought
later than one month after entry of the judgment’ ” (Matter of
Foreclosure of Tax Liens by County of Clinton [Tupaz], 17 AD3d 914,
915, quoting RPTL 1131; see Matter of County of Ontario [Helser], 72
AD3d 1636, 1637). Here, the judgment of foreclosure was entered on
March 31, 2010, and respondent did not move to vacate it until
September 12, 2011, nearly 18 months after it was entered. Contrary
to respondent’s contention, the statute of limitations set forth in
RPTL 1131 applies even where, as here, the property owner asserts that
he or she was not notified of the foreclosure proceeding (see Matter
of County of Schuyler [Solomon Fin. Ctr., Inc.], 83 AD3d 1243, 1244-
1245, lv denied 17 NY3d 850, rearg denied 18 NY3d 853; Helser, 72 AD3d
at 1637; Matter of County of Sullivan [Spring Lake Retreat Ctr.,
Inc.], 39 AD3d 1095, 1095-1096).

     In any event, we conclude that petitioner complied with the
notice requirements of RPTL 1125 inasmuch as petitioner sent notice of
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                                                         CA 12-01666

the foreclosure proceeding to respondent at her last known address by
both certified mail and ordinary first class mail. Although the
letter sent by certified mail was returned by the United States postal
service with the notations “no such street” and “unable to forward,”
the letter sent by ordinary first class mail was not returned. RPTL
1125 (1) (b) (i) provides that “notice shall be deemed received unless
both the certified mailing and the ordinary first class mailing are
returned by the United States postal service within forty-five days
after being mailed” (emphasis added). If both letters are returned,
the foreclosing agent “shall attempt to obtain an alternative mailing
address from the United States postal service” (id.). Here, because
only one of the two letters was returned, petitioner was not obligated
to take additional steps to notify respondent of the foreclosure
proceedings (see Helser, 72 AD3d at 1637).

     Furthermore, we note that respondent did not deny receiving
actual notice of the foreclosure proceeding in the affidavit she
submitted in support of her motion; instead, she averred only that
notice was not provided to her “at the address of record” (see
generally Sendel v Diskin, 271 AD2d 757, 758-759, lv denied 96 NY2d
707). In addition, respondent failed to establish that she notified
petitioner of her change of address, as required by RPTL 1125 (1) (d).
We therefore conclude that the court properly denied the motion.




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
