                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 17, 2014                      518062
________________________________

In the Matter of the
   Foreclosure of Tax Liens by
   COUNTY OF ULSTER.

COUNTY OF ULSTER,                            OPINION AND ORDER
                     Respondent;

ERED ENTERPRISES, INC.,
                    Appellant.
________________________________


Calendar Date:   June 5, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                              __________


     John J. Darwak, Shokan, for appellant.

      Beatrice Havranck, County Attorney, Kingston (Susan K.
Plonski of counsel), for respondent.

                              __________


McCarthy, J.

      Appeal from an order and judgment of the County Court of
Ulster County (Williams, J.), entered March 6, 2013, which, in a
proceeding pursuant to RPTL article 11, among other things,
granted petitioner's motion for summary judgment.

      Respondent owns real property located in Ulster County.
Respondent failed to pay property taxes in 2007, 2008 and 2009
and, in order to avoid foreclosure, the parties executed an
installment agreement in December 2009, which was reinstated in
2011, pursuant to RPTL 1184 and Local Law No. 1 (2000) of the
County of Ulster (hereinafter Local Law No. 1). The terms of the
installment agreement required respondent to pay the eligible
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delinquent taxes in the amount of $84,326.98 "plus interest at
the rate of [12%] per annum" in 24 monthly payments of
$3,969.57.1 Respondent ultimately defaulted with three payments
remaining.

      In October 2011, petitioner reinstated this in rem tax lien
foreclosure proceeding and demanded immediate payment of the
outstanding amount under the installment agreement. In its
answer, respondent asserted that it was ready, willing and able
to tender payment of the "unpaid balance due subject to an
equitable computation of any additional interest and/or
penalties" and that, as it was prepared to exercise its right to
redeem, foreclosure of the property was unjustifiable. Within
days of serving the answer, respondent's attorney proposed a
settlement of the matter for a payment of $12,504.15, consisting
of the three final monthly installment payments of $3,969.57,
which included a 12% annual interest rate, and a 5% late charge.
Petitioner rejected the offer, asserting, among other things,
that the Ulster County Commissioner of Finance lacked the
authority to accept a reduced amount of interest and penalties,
and, further, that the amount to redeem the property was
$16,752.79 as of the date of respondent's answer. Respondent,
having disputed petitioner's calculation, elected not to redeem
the property at that time.

      Petitioner moved for, among other things, summary judgment
on the foreclosure petition and to strike respondent's answer.
Respondent cross-moved for summary judgment dismissing the
petition, once again alleging that petitioner had incorrectly
computed the accrued interest and penalties on the outstanding
balance and demanding that the court determine the correct amount
required to redeem the property. In January 2013, County Court
issued a decision which, among other things, granted petitioner's
summary judgment motion and directed petitioner to submit a
proposed judgment in accordance with the decision. In March


    1
        RPTL 1184 (1) (a) defines the term "eligible delinquent
taxes" as the "delinquent taxes, including interest, penalties
and other charges, which have accrued against a parcel as of the
date on which an installment agreement is executed."
                               -3-                518062

2013, an order and judgment was entered granting petitioner's
motion for summary judgment, striking respondent's answer and
denying respondent's cross motion in its entirety. Respondent
appeals.

      Petitioner established its entitlement to judgment as a
matter of law by demonstrating that respondent defaulted on the
installment agreement, that the parcel has appeared on the list
of delinquent taxes since 2009 and, further, that following
respondent's default, petitioner accelerated the payment of the
entire unpaid balance – including interest and penalties – and
commenced enforcement proceedings (see RPTL 1138 [4]; 1184 [7],
[8] [b]; Local Law No. 1 [2000] of County of Ulster § 8; see also
Stone Bridge Farms, Inc. v County of Columbia, 88 AD3d 1209, 1211
[2011]). Respondent acknowledged, at all times prior to and
throughout the course of the foreclosure proceeding, that it
defaulted on the installment agreement and did not challenge the
validity of the proceeding or the amount of the eligible
delinquent taxes. However, the parties indicated to this Court,
both in their briefs and during oral argument, that respondent
exercised its right of redemption after the summary judgment
motions were decided by County Court and approximately two weeks
before the judgment of foreclosure was entered with the Ulster
County Clerk's office.2 Accordingly, we find that the part of
respondent's appeal relating to the grant of summary judgment on
the petition is now moot (see e.g. Matter of Pray v Clinton
County, 101 AD3d 1567, 1568 [2012]; Matter of Foreclosure of Tax
Liens by County of Delaware [JRL Outreach Program, Inc.], 16 AD3d
925, 926 [2005]), and the exception to the mootness doctrine is
not applicable (see Matter of Hearst Corp. v Clyne, 50 NY2d 707,
714-715 [1980]).

      Nonetheless, inasmuch as respondent had continually
demanded, both in its answer and cross motion, a judicial
determination of the redemption amount, County Court erred in
failing to address that issue. Where, as here, joinder of issue


     2
        Respondent purportedly redeemed its property by making,
under protest, a payment in the amount of $20,166.22 to
petitioner on February 20, 2013.
                              -4-                518062

occurred and the answer raised material issues that are relevant
within the context of the foreclosure action, the court is
required to "summarily hear and determine the issues raised by
the petition and answer in the same manner and under the same
rules as it hears and determines other proceedings or actions"
(RPTL 1130 [1]). Alternatively, where "it appears to the court
that testimony is necessary for the proper disposition of the
matter, it shall take evidence or appoint a referee to take such
evidence as it may direct" (RPTL 1130 [2]; see e.g. Matter of
County of Chautauqua v Elderkin, 111 AD3d 1406, 1407 [2013]; see
also Matter of American Tax Funding, LLC v Saita, 107 AD3d 1134,
1135 [2013]). As respondent's answer raised issues of fact
warranting consideration – which were articulated in greater
detail in the subsequent cross motion – County Court should have
decided the question before it (see e.g. Matter of City of Troy v
Greenburg, 251 AD2d 926, 928 [1998]; Matter of City of Binghamton
[Ritter], 128 AD2d 266, 267 [1987]).

      Next, we address respondent's argument that petitioner
erred in its calculation of the amount of interest and penalties
that were included in the final redemption amount. Initially,
contrary to petitioner's claim, respondent's failure to satisfy
its installment agreement obligations did not serve to nullify
the installment agreement or allow petitioner to cancel it;
rather, respondent's failure triggered the default provisions of
RPTL 1184, which are also reflected in the default sections of
Local Law No. 1 and the installment agreement itself (see RPTL
1184 [8]; Local Law No. 1 [2000] of County of Ulster § 8).
Because this is the first appellate decision addressing the
computation after a default of a delinquent tax installment
agreement, we find it instructive to fully explain the proper
statutory formula for all courts and taxing authorities to apply
in similar cases.

      We begin with the statutory requirements for installment
agreements, as relevant to a default. RPTL 1184 (6) calls for
amortization of interest over the period of the agreement and
says that each installment payment is due on the last day of the
month. RPTL 1184 (7) refers to RPTL 924-a for the applicable
interest rate, which here is 12% per annum or 1% per month (see
RPTL 924-a [1], [2]). Pursuant to RPTL 1184 (7), "[i]f an
                               -5-                518062

installment is not paid" by its due date, "interest shall be
added at the applicable rate for each month or portion thereof
until paid. In addition, if an installment is not paid by the
end of the fifteenth calendar day after the payment due date, a
late charge of [5%] of the overdue payment shall be added." In
the event of a default, the taxing authority has "the right to
require the entire unpaid balance, with interest and late
charges, to be paid in full" (RPTL 1184 [8] [b]), and can also go
forward with foreclosure or enforce the collection of the
delinquent tax lien pursuant to any other applicable law (see
RPTL 1184 [8] [b]).

      Petitioner found that respondent was in default and
reinstated the foreclosure proceeding, thereby demanding payment
of "the entire unpaid balance" (RPTL 1184 [8] [b]). The
problematic issue here is determining how to calculate that
balance and, using that balance, how to calculate the total
amount owed by respondent as of the date of redemption.

      We start by explaining how to calculate "the entire unpaid
balance." Although the statute may be complex, we find that its
language is unambiguous and, therefore, we must give effect to
its plain meaning (see Pultz v Economakis, 10 NY3d 542, 547
[2008]; Matter of Joyce [Coface N. Am. Ins. Co.-Commissioner of
Labor], 116 AD3d 1132, 1133 [2014]). Respondent acknowledges
that it failed to pay the September, October and November 2011
installment payments. The "entire unpaid balance" must be
figured as of the date that petitioner demanded that the balance
be paid in full (or accelerated it), which occurred here after
the September installment payment was overdue. When that payment
was not paid by its due date, 1% interest should have begun to
accrue (see RPTL 1184 [7]).3 The statute calls for interest to
be added if "an installment" is not paid, so this interest should
be calculated on the overdue September installment payment. In
addition, a 5% late charge should have been added for the
September installment payment because that payment was overdue by
more than 15 days (see RPTL 1184 [7] [imposing late charge of 5%


     3
        Under RPTL 1184 (7), this 1% is added even if the
taxpayer is not yet in default.
                              -6-                518062

"of the overdue payment"]). So the amount owed as of the date of
acceleration, but before acceleration occurred, included the
amount of the September installment payment, plus 1% interest on
that installment payment amount from the day after the September
payment was due until the date of acceleration, plus 5% of the
September installment payment amount as a late charge. Adding
that sum of September's payment, interest and late charge to the
remaining unpaid principal as of the date of acceleration
(covering what would have been the October and November
installment payments, but not including the amortized interest
for those months as those payments were not yet due under the
agreement) will produce "the entire unpaid balance."

      From the time that the balance was demanded (or
accelerated), 1% interest per month is due on that amount until
the property was redeemed. Although interest is still calculated
at 1%, this interest rate is not determined under the statutory
provisions dealing with interest on installment agreement
payments (see RPTL 1184 [6], [7]), but is determined under the
default provision of RPTL 1184 (8) (b) that allows petitioner to
enforce the collection of the delinquent tax lien pursuant to any
other applicable law (i.e., RPTL 924-a, which addresses interest
on tax delinquencies).

      Considering this statutory formula, petitioner's
calculation method was wholly unreasonable and likely resulted in
an excessive redemption amount (see RPTL 924-a [1], [2]; 1184
[7], [8]). Although respondent requests that we perform the
abovementioned calculation and determine the proper redemption
amount, due to the incomplete nature of the record, we must remit
this matter to County Court to apply the aforementioned formula
to the relevant facts to determine whether respondent is entitled
to a refund of a portion of the redemption amount that it paid
under protest.

     Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.
                              -7-                  518062

      ORDERED that the order and judgment is modified, on the
law, without costs, by reversing so much thereof as struck
respondent's answer and denied respondent's cross motion; matter
remitted to the County Court of Ulster County for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
