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April 22, 1994



The opinion of the court was delivered by: THOMAS J. MCAVOY


 The plaintiffs John Madan and the National Bank of Olyphant have brought the instant action against the United States of America, the defendant, to quiet title on a certain piece of land situated in Broome County, New York. Presently before the court are two motions for summary judgment made by the plaintiffs and the defendant.


 On or about April 8, 1993, a foreclosure sale was held on the steps of the Courthouse in Binghamton, New York. During this foreclosure sale, plaintiff National Bank of Olyphant ("Olyphant") purchased a real property situated at 95 Corliss Avenue, Johnson City, New York. This purchase was made in order to satisfy a mortgage lien on the said property. The property was bought for a nominal sum of $ 1.00. At the time of the foreclosure sale, the amount owed to Olyphant to satisfy the mortgage lien being foreclosed totalled $ 25,485.33. The referee appointed to sell the real property executed, acknowledged and delivered the deed to the real property to Olyphant, and the said deed was then recorded in the Broome County Clerk's Office.

 Soon thereafter, on June 28, 1993, the subject real property was sold by Olyphant to plaintiff John Madan for the sum of $ 25,000.00 by warranty deed. The deed was recorded in the Broome County Clerk's Office.

 Plaintiffs here allege that the manner in which the IRS carried out its attempt to redeem the said property was improper as the amount of the tendered price was insufficient. Plaintiffs have filed the instant complaint in order to quiet title on the property in question.

 Plaintiffs are now moving for summary judgment pursuant to Fed. R. Civ. P. 56 and are also seeking attorney's fees and costs. The defendant has cross moved for summary judgment.


 Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. There must be more than a "metaphysical doubt as to the material facts." Delaware & Hudson Ry. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). All ambiguities must be weighed in favor of the non-moving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

 However, the fact that all reasonable inferences are drawn in favor of the non-moving party does not leave that party with no burden in defending against a motion for summary judgment. It is the non-moving party who must support the ultimate burden of proof by demonstrating that there exists some evidence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). In fulfilling this burden of proof, conclusory allegations or a "scintilla of evidence" is not sufficient to create a genuine issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). It is in light of this standard that the court reviews this case. The court will first address defendant's motion for summary judgment.

 Initially, defendant attempts to dismiss the present claim on sovereign immunity grounds. It is alleged that in order for the United States to be a defendant in a lawsuit, the government must have expressly waived its sovereign immunity through an act of Congress. Defendant argues that the United States has not waived any such immunity in the present action.

 Courts have long recognized the general principle that "the United States, as sovereign, 'is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Lehman v. Nakshian, 453 U.S. 156, 160, 101 S. Ct. 2698, 2701, 69 L. Ed. 2d 548 (1981) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 953, 47 L. Ed. 2d 114 (1975)). Therefore, if Congress expressly waives the government's immunity from certain types of lawsuits, then the "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto ...

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