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CARMELO C. FARRANTO v. HENRY R. HAASE (06/05/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY 1969.NY.41857 <http://www.versuslaw.com>; 303 N.Y.S.2d 163; 60 Misc. 2d 625 June 5, 1969 CARMELO C. FARRANTO, PLAINTIFF,v.HENRY R. HAASE, AS ASSESSOR OF THE TOWN OF BROOKHAVEN, ET AL., DEFENDANTS Alan Brand for plaintiff. George C. Furman for Henry R. Haase and another, defendants. George W. Percy, Jr., County Attorney, for Suffolk County Treasurer and another, defendants. Jack Stanislaw, J. Author: Stanislaw


Jack Stanislaw, J.

Author: Stanislaw

 This is an action for declaratory judgment to determine plaintiff's rights with respect to a certain one-acre parcel of realty located in Holbrook, Township of Brookhaven, County of Suffolk.

The property was conveyed to plaintiff by a tax deed issued by the County Treasurer on January 9, 1957 in consideration of payment in the sum of $23.73, representing past-due taxes on the premises for the year 1952/1953.

Plaintiff held the deed for some six years, and during that time apparently neither tried nor was able to determine its location. In 1963, however, believing the property did not exist, he returned the deed to the county and received a full refund of all moneys paid by him at the tax sale and for subsequent taxes.

Plaintiff has produced a copy of a letter, dated April 26, 1963, on the letterhead of the Town of Brookhaven, Assessor's Office, addressed "To whom it may concern", signed by Lawrence J. Fogarty, Chief Clerk, reading as follows:

"On this day Charles C. Farranto does agree that he will surrender his tax deed issued January 9, 1957 to property described as follows, N -- To a point; E -- Wyell, Steiger, Farranto & Ors.; S -- Pederson W -- Webster Map; Being 1 Acre located at Holbrook School Dist. 5-25 in Described Book #1. This property according to the affidavit does not exist. "However Mr. Farranto wishes to reserve the right that if in the future this property is found to exist that this affidavit should be cancelled and the Tax Deed to Charles C. Farranto be reinstated automatically to him and any and all monies refunded to Mr. Farranto and any additional taxes will be paid to the County of Suffolk."

Attached to the letter is an affidavit entitled "Assessor's Certificate of Erroneous Assessment". The affidavit, sworn to on April 30, 1963, is made by "Francis J. Rooney, Deputy Assessor". It contains a description of the subject premises and states: "[The] assessment for the years 1952-1953 to 1961-1963 * * * is erroneous in that the parcel described does not exist. Therefore, the tax sale should be cancelled and also the deed issued to Farranto 1/9/57 should be cancelled. Property assessed to Unknown Owner now Farranto should be cancelled. Charge back, if any, should be made to the Town of Brookhaven."

Plaintiff has also produced a copy of a letter addressed to him, dated May 16, 1963, on the letterhead of the Town of Brookhaven, signed by Alex G. Proios, Receiver of Taxes, re item #1232881, 1 acre, Holbrook, stating:

"An affidavit was issued by the Board of Supervisors, Riverhead, N. Y., canceling the above item, as this parcel does not exist.

"Will you kindly return in the enclosed envelope, the full tax receipt you hold, and which has been cancelled, so that the necessary refund can be made to you."

Accordingly, plaintiff surrendered the deed and received a refund. In 1966, however, it was discovered that the property described in the 1957 tax deed does exist. Relying upon the Fogarty letter, plaintiff requested reinstatement of his deed. In response, his attorney received the following letter from the County Treasurer, dated December 16, 1966:

"I am enclosing herewith a copy of a letter I have sent to Mr. Henry R. Haase, Assessor, Town of Brookhaven in connection with the above captioned property.

"This office can not take any further action on this case until a certificate of erroneous assessment is received from the Assessor authorizing the reinstatement of the assessment."

Neither Fogarty (the former chief clerk of the Assessor's office) nor Rooney (the former deputy assessor) is a party to this action. But plaintiff claims that the encumbent Assessor of the Township of Brookhaven, a party defendant herein, advised that he would not issue the certificate of erroneous assessment (referred to in the December 16, 1966, letter of the defendant County Treasurer) unless plaintiff produced a survey, showing and guaranteeing the existence of the disputed premises. Plaintiff further claims that he caused such a guaranteed survey to be prepared, at an expense to him of $1,200, but ...


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