                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 25, 2016                    521501
________________________________

LEWIS McCAULEY et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

DANIEL J. HOLSER,
                    Respondent,
                    et al.,
                    Defendants.
________________________________


Calendar Date:   January 8, 2016

Before:   Peters, P.J., Garry, Egan Jr., Devine and Clark, JJ.

                              __________


      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Justin
W. Gray of counsel), for appellants.

     Daniel J. Holser, Averill Park, respondent pro se.

                              __________


Garry, J.

      Appeal from that part of an order of the Supreme Court
(Elliott III, J.), entered January 13, 2015 in Rensselaer County,
which partially denied plaintiffs' cross motion for summary
judgment.

      Defendant Daniel J. Holser (hereinafter defendant) is the
owner of land in the Town of Poestenkill, Rensselaer County that
was previously owned by his father, Everett Holser (hereinafter
Holser), who died in 1997. In 1955, Holser took title by deed to
eight parcels of land comprising a total of approximately 72
acres. Rensselaer County tax authorities initially treated the
eight parcels separately for tax purposes, but subsequently
established new tax parcels with sizes and boundaries that no
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longer corresponded to those set forth within the 1955 deed. In
1976, one of these parcels was identified on the tax map with tax
identification number 137-1-31, containing approximately 60
acres. Parcel number 137-1-31 was thereafter divided into two
parts, identified as 137-1-31.2 (hereinafter Parcel One) and 137-
1-31.1, and is so shown on the 1983 tax map. Holser continued to
receive tax bills and pay taxes for 137-1-31.1, but the tax
records for Parcel One began to list its owner as "unknown."

      In 1985, Rensselaer County sent a letter to the owners of
land adjacent to Parcel One – including Holser – that identified
Parcel One by its tax identification number, stated that its
owner was unknown and asked if the adjacent owners had an
interest in it or could identify its owner. This letter stated
that real property taxes were delinquent and that tax foreclosure
proceedings would soon be commenced. A second, similar letter
was sent to Holser and other adjacent owners in late 1987.
Handwritten notes in the County's records reveal that Holser
responded to the 1987 letter by calling the County; he stated
that he was only paying taxes on 24 acres when he owned
approximately 72 acres, advised that he would be away for a few
months, and provided his address and telephone number during his
absence. Additional notes in the County's records further
indicate that another property owner called to report that Holser
might be the owner of Parcel One and that a letter should be sent
to his son, defendant. The County then sent a letter to
defendant stating that neighbors believed that Holser might own
Parcel One and that the property was tax delinquent and subject
to immediate foreclosure. The records do not indicate whether
defendant responded.

      In 1988, Parcel One – described by its tax identification
number and with its owner stated as unknown – was included in the
County's recorded delinquent tax list. Parcel One was thereafter
included in a 1989 judgment of tax foreclosure and deeded to the
County. In May 1989, the County sent another letter to the
owners of adjacent property, including Holser, advising that
Parcel One was scheduled to be sold at public auction. In June
1989, following the auction, Parcel One was deeded to the father
of defendant Edward R. Clements. In 1997, Parcel One was
conveyed to Clements and his wife and, in 2003, they sold it to
                               -3-                521501

plaintiffs via a warranty deed.

      Plaintiffs commenced this action in 2013 pursuant to RPAPL
article 15. As pertinent here, plaintiffs sought to quiet title
to Parcel One against defendant, who had by then taken title to
Holser's property by inheritance.1 Following joinder of issue,
defendant moved for summary judgment dismissing the complaint
against him as to Parcel One and declaring any tax deed or
ownership claim derived from such a deed to be void. Plaintiffs
cross-moved for, among other things, summary judgment quieting
title to Parcel One. Supreme Court denied defendant's motion
and, as pertinent here, denied plaintiffs' cross motion, finding,
among other things, triable issues of fact as to whether Holser
was given the requisite notice of the tax foreclosure
proceedings. Plaintiffs appeal.

      Initially, we reject plaintiffs' contention that certain
statements made by defendant in his pro se brief constitute
admissions that he has no ownership interest in Parcel One.2 The
statements in question are premised, in part, on new factual
assertions and evidentiary submissions that this Court cannot
consider as they are not part of the appellate record. More
significantly, we find that the disputed remarks were not
intended to be concessions or admissions, but were challenges to
the validity and definiteness of the County's identification of
Parcel One at the time of the tax foreclosure proceedings.

      Tax foreclosure proceedings enjoy a presumption of
regularity that "includ[es] the assessment of the real property
affected and all notices required by law" (RPTL 1137 [former RPTL
1136 (7)]; see Lin v County of Sullivan, 100 AD3d 1076, 1077
[2012]; Sendel v Diskin, 277 AD2d 757, 758 [2000], lv denied 96
NY2d 707 [2001]). The presumption becomes conclusive two years
after the tax deed is recorded (see RPTL 1137 [former RPTL 1136


     1
        Plaintiffs also sought to quiet title relative to another
parcel not involved in this appeal.
     2
        Defendant was represented by counsel in Supreme Court,
but represented himself upon this appeal.
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(7)]; Matter of City of Troy [Kingsley-Nationstar Mtge., LLC],
115 AD3d 1088, 1089-1090 [2014]). However, a due process
challenge is not barred by the statute of limitations where a
landowner had no actual notice of tax foreclosure proceedings
during the prescriptive period (see Campbell v City of New York,
77 NY2d 688, 698 [1991], cert denied sub nom. Matter of ISCA
Enters. v City of New York, 503 US 906 [1992]; Bridgehampton Dev.
Corp. v County of Suffolk, 26 AD3d 308, 309 [2006]; Meadow Farm
Realty Corp. v Pekich, 251 AD2d 634, 635 [1998], appeal dismissed
92 NY2d 946 [1998], lv denied 93 NY2d 802 [1999]). We agree with
Supreme Court that issues of fact as to whether Holser received
constitutionally sufficient notice that his property was subject
to tax foreclosure proceedings preclude a determination that
defendant's challenge to the validity of the tax sale is time-
barred as a matter of law.

      Due process is satisfied in tax foreclosure proceedings
when "'notice [is] reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the [proceeding] and afford them an opportunity to present their
objections'" (Matter of Harner v County of Tioga, 5 NY3d 136, 140
[2005], quoting Mullane v Central Hanover Bank & Trust Co., 339
US 306, 314 [1950]; see Kennedy v Mossafa, 100 NY2d 1, 9 [2003]).
Whether notice was constitutionally sufficient is determined
through a flexible analysis of the reasonableness of the taxing
authority's actions in each case, striking a balance between the
governmental interest in tax collection and the property owner's
interest in receiving adequate notice (see Matter of Harner v
County of Tioga, 5 NY3d at 140; Matter of County of Clinton
[Bouchard], 29 AD3d 79, 82 [2006]). The US Constitution does not
require personal notice to a property's actual owner in every
instance; due process instead obliges the taxing authority "to
give reasonable notice to ascertainable interested parties under
the circumstances" (Maple Tree Homes, Inc. v County of Sullivan,
17 AD3d 965, 966 [2005], appeal dismissed 5 NY3d 782 [2005]; see
Congregation Yetev Lev D'Satmar v County of Sullivan, 59 NY2d
418, 422 [1983]; Matter of City of Hudson, 114 AD3d 1106, 1107-
1108 [2014], appeal dismissed 23 NY3d 984 [2014], lv denied 24
NY3d 903 [2014]). Tax authorities are not required to make
"extraordinary efforts," but they must make a reasonable attempt
to determine the identities of such interested parties
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(Congregation Yetev Lev D'Satmar v County of Sullivan, 59 NY2d at
426). "[T]he assessor is charged with knowledge of facts which
an examination of the real property and tax records reveals" (id.
at 425), and a tax sale is "constitutionally infirm" when notice
is not given to an owner whose identity could have been "readily
ascertain[ed] from the real property records" (Seine Bay Realty v
Jones, 112 AD2d 573, 574 [1985]).

      Here, the inability of tax authorities to identify Parcel
One's owner appears to have resulted solely from their own
actions in revising and maintaining the tax records. The
evidence suggests that the County could have determined the
identity of Parcel One's owner by examining its own previous tax
bills and assessments, which would have shown that Holser owned
the entirety of 137-1-31 before it was divided. Further, it
appears that an examination of County land records would have
revealed that Holser had owned the underlying property since
1955, had not conveyed or subdivided Parcel One during the
pertinent time period, and continued to be the only legal owner
of record. Therefore, there are issues of fact as to whether,
with due diligence, the County could have determined from the
real property records that Holser was the record owner of Parcel
One and an "ascertainable interested part[y]" entitled to notice
(Maple Tree Homes, Inc. v County of Sullivan, 17 AD3d at 966; see
Seine Bay Realty v Jones, 112 AD2d at 574; compare Congregation
Yetev Lev D'Satmar v County of Sullivan, 59 NY2d at 426-427;
Matter of County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d
1206, 1208 [2014]).

      As to whether Holser should have known that Parcel One was
his property, the tax maps and bills in the record reveal that
considerable confusion prevailed in County tax assessments, bills
and tax maps as to the location and size of Parcel One, as well
as that of the other parcels comprising Holser's real property.
Copies of Holser's tax bills in the years before the foreclosure
reveal multiple inconsistencies and discrepancies in the
identification numbers, appraised value and stated acreage of
Holser's parcels; the information in the tax bills varied from
year to year and often did not correspond with either the County
tax maps or the property deed descriptions. County tax maps were
also repeatedly revised in the years before and after the tax
                              -6-                521501

foreclosure proceedings, and multiple changes were made in the
boundaries of Parcel One and other parcels in the vicinity as
depicted. Significantly, the size, shape and location of Parcel
One as shown on the 1988 tax map – that is, at the time of the
tax foreclosure – are different from what is shown on previous
maps, and the boundaries of Parcel One were again revised in 1993
to correspond more closely with those shown on the pre-1988 maps.
Plaintiffs themselves allege in their complaint that Parcel One's
property description cannot be reconciled with County tax maps.
Accordingly, there are issues of fact as to whether Parcel One
was described with enough specificity and definiteness at the
time of the tax foreclosure proceedings to put Holser on notice
that his property was being foreclosed upon (compare Kiamesha
Dev. Corp. v Guild Props., 4 NY2d 378, 387 [1958]).

      We further reject plaintiffs' contention that the County's
letters were constitutionally sufficient as a matter of law to
provide the requisite notice to Holser of the tax foreclosure
proceeding. Initially, the letters did not purport to be notices
that tax foreclosure proceedings had been commenced; instead,
they merely inquire as to whether the recipients knew the owners
of property that was at risk of future foreclosure. Further,
"consideration is given to the conduct of the owner in evaluating
the reasonableness of [a municipality's] notice efforts" (Matter
of County of Clinton [Bouchard], 29 AD3d at 84 [internal
quotation marks and citation omitted]; see Matter of Harner v
County of Tioga, 5 NY3d at 140). The County's lack of knowledge
of the owner of Parcel One did not result from any errors or
omissions on Holser's part, but from actions by the County, of
which Holser did not apparently have knowledge (compare Matter of
Girrbach v Levine, 132 AD2d 41, 43-44 [1987]). The 1985 and 1987
letters seeking information as to Parcel One's ownership from
adjacent owners identified it only by the tax identification
number that was assigned after it had been divided from the
previous larger parcel. Nothing in the record reveals whether
Holser knew that a new tax identification number had been
assigned to this portion of his property, or that he had any
reason to suspect that the County had lost track of his ownership
of the property, upon which he had previously paid taxes since
1955.
                              -7-                521501

      Plaintiffs contend that the County's letters should
nevertheless have been sufficient to warn Holser that Parcel One
might be his property and that action might be necessary to
protect it from tax foreclosure. However, "'[a] party's ability
to take steps to safeguard its interests does not relieve [a
municipality] of its constitutional obligation'" to provide
notice (Seine Bay Realty v Jones, 112 AD2d at 575, quoting
Mennonite Bd. of Missions v Adams, 462 US 791, 799 [1983]). Even
after the County identified Holser as a possible owner of Parcel
One, it apparently failed to pursue that information by
communicating directly with him. As previously noted, Holser
responded to the County's 1987 inquiry and provided an address
where he could be reached. Nonetheless, when the County later
heard from the neighbor that Holser might own Parcel One, it did
not use the contact information that Holser had provided;
instead, the County wrote only to defendant, who had no ownership
interest in Holser's property at that time. Thereafter, although
the County by now had reason to suspect that Holser might, at
minimum, be an "interested part[y]" (Matter of Harner v County of
Tioga, 5 NY3d at 140), it made no further efforts to contact him,
did not name him as a party in the subsequent tax foreclosure
proceedings, provided no personal notice to him, and continued to
identify Parcel One's owner as "unknown" in the tax delinquency
list and the judgment of foreclosure. Finally, when the County
wrote to Holser to advise him that Parcel One was scheduled for
public auction, the letter did not describe Parcel One as his
property, stating instead that the parcel was "adjacent to
property owned by you." In the context of the substantial
confusion as to the ownership, location and description of Parcel
One prevailing in the County's tax maps, assessments and bills
during this period, we find issues of fact as to whether the
County satisfied its constitutional obligation to determine the
identities of interested parties and whether Holser's due process
rights were violated by a failure of notice of the tax
foreclosure proceedings (see Kiamesha Dev. Corp. v Guild Props.,
4 NY2d at 387; Seine Bay Realty v Jones, 112 AD2d at 574-575).
Thus, Supreme Court properly denied plaintiffs' cross motion for
summary judgment as to Parcel One.
                        -8-                  521501

Peters, P.J., Egan Jr., Devine and Clark, JJ., concur.



ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
