                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521794
________________________________

LAKESIDE REALTY LLC,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

COUNTY OF SULLIVAN et al.,
                    Respondents.
________________________________


Calendar Date:   April 26, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.

                             __________


      Stoloff & Silver LLP, Monticello (Gary D. Silver of
counsel), for appellant.

      Samuel S. Yagur, County Attorney, Monticello (Thomas J.
Cawley of counsel), for County of Sullivan and another,
respondents.

      Terence D. Watson, Fidelity National Law Group, New York
City, for Kuplen Properties, LLC, respondent.

                             __________


Mulvey, J.

      Appeal from an order of the Supreme Court (Schick, J.),
entered January 27, 2015 in Sullivan County, which granted a
motion by defendant County of Sullivan for summary judgment
dismissing the complaint.

      In 2001, plaintiff, a New York limited liability company,
purchased two parcels of vacant property identified as parcel
Nos. 8-1-10.2 and 8-1-21.2 in the Town of Liberty, Sullivan
County. After plaintiff failed to pay its taxes on the parcels
for two years, defendant County of Sullivan commenced a tax
                               -2-                521794

foreclosure proceeding pursuant to RPTL article 11.

      The County mailed by certified and ordinary first class
mail a copy of the petition and notice of foreclosure, the
personal notice of foreclosure and list of properties to
plaintiff at two addresses: "5 E 37th Street New York, NY 10016"
and "21 E 40th St. Fl. 12 New York, NY 10016" – the first of
which was obtained from plaintiff's deed and 2001 note and
mortgage, and the second secured from a 2005 mortgage
modification agreement, tax bills and tax roll. All the mailings
were returned to the County as undeliverable; however,
handwriting on the envelope for the certified mail to the 21 East
40th Street address read "FWD 286 Madison NYC 10017." The County
then mailed the pleadings by ordinary first class mail and
certified mail to plaintiff at "286 Madison New York, NY 10017"
and also to "286 Madison New York, NY 10011."1 The certified
mailings to both 286 Madison zip code addresses were returned to
the County with a United States Postal Service (hereinafter USPS)
stamp: "Returned To Sender Moved, Left No Address NY, NY 10017-
9998." Notably, the ordinary first class mailings to both 286
Madison zip code addresses were not returned.

      Thereafter, the County posted a copy of the petition and
notice of foreclosure at the County Treasurer's office, County
Clerk's office and County government center lobby and published
the same in two official newspapers for a total of six times.
Although not required by statute, the County also posted a copy
of personal notice of commencement of foreclosure proceedings and
petition and notice of foreclosure at five post offices in the
County.

      When plaintiff failed to appear or contest the foreclosure
proceeding, County Court (McGuire, J.) granted the County a
default judgment, which was entered in April 2011, and, in
furtherance thereof, the County recorded a deed in April 2011
transferring the subject parcels to it. In July 2011, the County


     1
        There was some uncertainty about the zip code for the 286
Madison address, so mailings were sent to two different zip
codes.
                              -3-                521794

sold the parcels to defendant Kuplen Properties, LLC. In
September 2012, plaintiff commenced this action against the
County and Ira Cohen, the Sullivan County Treasurer (hereinafter
collectively referred to as the County), as well as against
Kuplen, seeking, among other things, vacatur of the default
judgment and a declaration that the foreclosure proceeding and
the deed from the County to Kuplen were null and void. Kuplen
asserted a cross claim against the County for indemnification.
After joinder of issue and discovery, the County and Kuplen each
moved for summary judgment dismissing the complaint. Supreme
Court (Schick, J.) granted the County's motion and dismissed the
complaint as time-barred.2 Plaintiff appeals.

      Plaintiff argues that its action is not time-barred since
the one-month limitations period set forth in RPTL 1131 was never
triggered given the County's failure to comply with the notice
requirements of RPTL 1125 thereby violating plaintiff's due
process rights. We disagree. Initially, "[a] tax debtor's
motion to reopen a default judgment of tax foreclosure 'may not
be brought later than one month after entry of the judgment'"
(Matter of County of Clinton [Bouchard], 29 AD3d 79, 81 [2006],
quoting RPTL 1131; see Matter of County of Otsego [Force], 128
AD3d 1165, 1166 [2015]). Such time period is applicable "even
where, as here, the property owner asserts that he or she was not
[properly] notified of the foreclosure proceeding" (Matter of
County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d 1206, 1207
[2014] [internal quotation marks and citations omitted]; see
Matter of County of Sullivan [Dunne—Town of Bethel], 111 AD3d
1232, 1234 [2013]). The debtor has "the burden of affirmatively
establishing a jurisdictional defect or invalidity in . . . the
foreclosure proceedings" because such proceedings are cloaked
with a presumption of regularity (Kennedy v Mossafa, 100 NY2d 1,


    2
        The order does not explicitly rule on Kuplen's motion
but, after granting the County's motion, the court states that
"[a]ll other claims and actions have been considered and found
wanting," thus implicitly dismissing the complaint against
Kuplen. In fact, Kuplen appeared as a respondent on this appeal
and, in its brief, considers the complaint dismissed as against
it.
                              -4-                521794

8 [2003]; see RPTL 1134; Matter of County of Sullivan
[Matejkowski], 105 AD3d 1170, 1171 [2013], appeal dismissed 21
NY3d 1062 [2013]).

      In a tax foreclosure proceeding, "[d]ue process does not
require actual notice by the property owner, only reasonable
efforts to provide notice under the circumstances" (Matter of
County of Sullivan [Fay], 79 AD3d 1409, 1411 [2010], lv dismissed
17 NY3d 787 [2011] [citation omitted]; see MacNaughton v Warren
County, 20 NY3d 252, 255 [2012]; Matter of County of Sullivan
[Dunne—Town of Bethel], 111 AD3d at 1235). "Whether there has
been compliance with the flexible concept of due process turns on
a 'case-by-case analysis that measures the reasonableness of a
municipality's actions in seeking to provide adequate notice'"
(Matter of County of Broome, 50 AD3d 1300, 1302 [2008], quoting
Matter of Harner v County of Tioga, 5 NY3d 136, 140 [2005]). Due
process is satisfied where "notice is reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the [foreclosure] proceeding and afford them an
opportunity to present their objections" (Matter of County of
Clinton [Greenpoint Assets, Ltd.], 116 AD3d at 1208 [internal
quotation marks, brackets and citations omitted]; see Jones v
Flowers, 547 US 220, 235-236 [2006]).

      To that end, each property owner is entitled to personal
notice of the tax foreclosure proceeding, which is to be sent by
both ordinary first class mail and by certified mail to the
address contained in the public record (see RPTL 1125 [1] [a],
[b] [i]). The notice sent by mail "shall be deemed received
unless both the certified mailing and the ordinary first class
mailing are returned by the [USPS] within [45] days after being
mailed" (Matter of County of Sullivan [Matejkowski], 105 AD3d at
1171 [internal quotation marks and citation omitted; emphasis
added]). "[W]here one of the notices is not returned within the
requisite period, [the County] is not obligated to take
additional steps to notify [the tax debtor] of the foreclosure
proceeding" (Matter of County of Clinton [Greenpoint Assets,
Ltd.], 116 AD3d at 1207 [internal quotation marks and citations
omitted]; see Matter of County of Sullivan [Dunne—Town of
Bethel], 111 AD3d at 1234-1235). Only where both the regular and
certified mailings are returned by the USPS is a county required
                               -5-                521794

to "attempt to obtain an alternative mailing address from the
. . . [USPS]" and, if such address is found, the notice must be
mailed to that address "both by certified mail and by ordinary
first class mail" (RPTL 1125 [1] [b] [i], [ii] [emphasis added]).

      Here, the County mailed the pleadings by ordinary first
class mail and certified mail to the addresses that it found in
the public record (see RPTL 1125 [1] [a], [e]) and, when one of
the mailings was returned by the USPS with a forwarding notation,
the County remailed the pleadings by ordinary first class mail
and certified mail to the noted address: "286 Madison." The
certified mailings were returned but the ordinary first class
mailings were not returned. Plaintiff admits that "286 Madison
Avenue, 12th Floor, New York, New York 10017" is its "correct"
mailing address. Furthermore, the County had contacted the USPS
and received a response that there was no change of address on
file for the "5 E. 37th Street" address. Plaintiff complains
that the County did not contact the USPS with respect to the "21
E. 40th St." address as it had done for the "5 E. 37th Street"
address. However, the County had already obtained an alternative
address of 286 Madison via the handwritten notation on the
returned certified mail to the "21 E. 40th St." address.

      Plaintiff further complains that the posting was
insufficient since the notices were only posted on the parcel
with road frontage.3 We find this argument unpersuasive (see
Matter of County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d
at 1206). Only if no alternative address can be found is a
county required to post the notice at the property itself, which
may be accomplished by attaching the notice "to a vertical
object, such as a tree, post or stake, and plainly visible from
the road" (RPTL 1125 [1] [b] [iii]; [c]; see Matter of County of
Clinton [Greenpoint Assets, Ltd.], 116 AD3d at 1206, 1208; Matter


     3
        Parcel No. 8-1-10.2 is bisected by the public highway and
parcel No. 8-1-21.2 is adjacent to parcel No. 8-1-10.2, but
parcel No. 8-1-21.2 does not front on the public highway. The
utility pole is on parcel No. 8-1-10.2. It is unclear from the
record whether the pole is on the same side of the highway as
parcel No. 8-1-21.2.
                              -6-                521794

of County of Sullivan [Fay], 79 AD3d at 1411). Even though not
required by the statute, since the ordinary first class mail to
the 286 Madison address was not returned, the County posted two
copies of the petition and notice of foreclosure on a utility
pole adjacent to the public highway on one of the parcels (see
RPTL 1125 [1] [b] [iii]). The record shows that the County
undertook a concerted effort to comply with statutory and due
process requirements, including posting two notices (one for each
parcel) on a utility pole on the parcel with road frontage.

      Plaintiff also argues that, because it is a domestic
business entity, due process principles required the County to
also search the Department of State's website, which would have
revealed the valid and active address of plaintiff's agent to
whom the County should have mailed the notices (see Limited
Liability Company Law § 203 [e] [4]). There appears to be no
binding authority for this proposition. To the contrary, it has
been held and reaffirmed that "[a] reasonable search of the
public record" for due process purposes "does not necessarily
require searching the Internet" (Kennedy v Mossafa, 100 NY2d at
10; see MacNaughton v Warren County, 20 NY3d at 257; Matter of
County of Schuyler [Solomon Fin. Ctr., Inc.], 83 AD3d 1243, 1245
[2011], lv dismissed 17 NY3d 850 [2011]). We hold that the
County fulfilled its responsibility to provide adequate notice to
plaintiff.

      As relevant to both the statutory and due process
inquiries, ownership carries responsibilities, which include an
obligation to inform the tax enforcer of a change in address, and
a failure to do so may be taken into account by courts when
evaluating the adequacy of notice (see RPTL 1125 [1] [d]; Matter
of Harner v County of Tioga, 5 NY3d at 141; Matter of County of
Sullivan [Dunne—Town of Bethel], 111 AD3d at 1235; MacNaughton v
Warren County, 89 AD3d 1269, 1271 [2011], affd 20 NY3d 252
[2012]). Here, plaintiff allowed several years to pass without
paying property taxes or having any contact with the County and,
in light of its admitted tax delinquency, plaintiff should have
known that the County would attempt to collect the taxes owed to
it.
                              -7-                  521794

      The County fully complied with the notice requirements of
RPTL article 11, and due process does not require the County to
go to lengths beyond its inquiry into the public record, mailing
by both ordinary first class mail and certified mail, inquiry and
appropriate response to information received from the USPS,
remailing the pleadings as indicated, and the publication and
posting measures taken here (see Matter of County of Schuyler
[Solomon Fin. Ctr., Inc.], 83 AD3d at 1246; Matter of County of
Sullivan [Fay], 79 AD3d at 1411). In summary, we find that the
County adequately complied with the statutory notice requirements
of RPTL article 11 and it satisfied due process requirements.
Accordingly, as plaintiff failed to comply with the one-month
statute of limitations period, Supreme Court properly dismissed
the complaint as untimely. We have examined plaintiff's other
contentions and find them to be without merit.

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



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
