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FARBOTKO v. CLINTON COUNTY

October 11, 2001

ALBERT FARBOTKO; ALEKSANDRA FARBOTKO; JOHN FARBOTKO AND A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS AND COUNTER-DEFENDANTS,
V.
CLINTON COUNTY, NEW YORK DEFENDANT AND COUNTER-CLAIMANT, AND WILLIAM BINGEL, IN HIS OFFICIAL CAPACITY AS CLINTON COUNTY ADMINISTRATOR, DEFENDANT.



The opinion of the court was delivered by: Homer, United States Magistrate Judge.

      MEMORANDUM-DECISION AND ORDER

Plaintiffs bring this class action*fn1 pursuant to 42 U.S.C. § 1983 alleging violations of their civil rights. Specifically, the amended complaint alleges that in 1999, defendants violated their Fourteenth Amendment rights to due process and equal protection in tax foreclosure proceedings. Am. Compl. (Docket No. 8). The amended complaint also alleges pendent state law claims. Plaintiffs seek compensatory damages, declaratory and injunctive relief as well as attorney's fees.

Presently pending is plaintiffs' motion for partial summary judgment pursuant to Fed.R.Civ.P. 56(a). Docket No. 45. Defendants cross-move for summary judgment. Docket No. 49. The New York State Association of Counties and the County Attorneys Association of New York filed an amicus curie brief in support of defendants' cross-motion for summary judgment. Docket No. 64. Oral argument was heard on April 30, 2001. Decision was reserved. For the reasons which follow, plaintiffs' motion for summary judgment is denied and defendants' motion for summary judgment is granted in part and denied in part.

I. Background

Prior to 1999, it was Clinton County's past practice to serve notices of tax foreclosure by certified mail. Clinton County Resolution No. 825 permitted delinquent tax payers to redeem their property until the Friday prior to the date of sale at public auction. Rausch Aff. (Docket No. 30) at ¶ 10; Docket No. 28 at Ex. 31. In 1993, New York State amended Article 11 of the Real Property Tax Law. These amendments, effective January 1, 1995, included the authority for municipalities to serve notice of property foreclosures by ordinary first class mail*fn2 and established a two-year redemption period with an option for municipalities to extend this period to four years for residential or farm properties. See N.Y. Real Prop. Tax Law §§ 1110 & 1125 (McKinney 2000). In 1997, Clinton County enacted Local Law No. 5, which extended the redemption period for residential and farm properties from two to four years. Rausch Aff. (Docket No. 50) at Ex. H; Docket No. 28 at Ex. 26.

On October 2, 1998 and January 22, 1999, approximately 525 property owners who were delinquent in paying their taxes for either 1995, 1996 or 1997 were served by ordinary first class mail with "Notices & Petitions of Foreclosure."*fn3 See Docket No. 28 at Ex. C; Rausch Aff. (Docket No. 50) at Ex. I. These property owners were given until April 26, 1999 to redeem their property.*fn4 Rausch Aff. (Docket No. 30) at Ex. C. These notices also advised property owners that failure to redeem would result in termination of their rights in their property and that such property would be sold at public auction. Id. Clinton County also published copies of tax notices and a list of delinquent tax payers in the local newspapers. Rausch Aff. (Docket No. 50) at ¶ 17. On January 27, 1999, Clinton County enacted Resolution No. 79, which rescinded resolution No. 825. Resolution No. 79 did not create any new tax foreclosure procedures. Thus, with the exception of Local Law No. 5, Clinton County followed the procedures set forth in Article 11 of the N.Y. Real Prop. Tax Law. Duprey Dep. (Docket No. 50, Ex. C) at 14-15.

Prior to the April 26, 1999 redemption deadline, approximately eighty-one of the 525 notices served by first class mail were returned by the Postal Service to Clinton County marked "undeliverable." Docket No. 28 at Ex. C. Of these eighty-one notices, Janet Duprey ("Duprey"), Clinton County Treasurer, checked for alternate addresses on file with the Clinton County Real Property Tax Office and mailed notices to any different addresses that were located. Duprey Dep. at 38-39.*fn5 Following the April 26, 1999 redemption deadline, Clinton County permitted seven property owners to redeem their property. See Docket No. 28 at Exs. 5-14. These property owners were permitted to redeem due to errors by abstract companies, actual mailing errors and because residential property had been mischaracterized as vacant. Id.

On August 26, 1999, Clinton County obtained a default judgment of foreclosure against approximately 203 parcels. Schneider Aff. (Docket No. 27) at ¶ 12; Docket No. 28 at Ex. D. On November 15, 1999, approximately 176 parcels were offered for sale at public auction. Rausch Aff. (Docket No. 30) at ¶ 16. At the sale, plaintiffs Farbotkos and Spinner successfully bid on their property and regained title. Plaintiff Baker's property was sold to his brother, who subsequently transferred title back to Baker. Plaintiff Gooley's property is still owned by Clinton County. Id.

II. Summary Judgment Standard

Under Fed.R.Civ.P. 56(c), if the record taken as a whole reveals "no genuine issue as to any material fact . . . the moving party is entitled to judgment as a matter of law." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (1998). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994); see also Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). Once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmovant. American Cas. Co. of Reading, Pa. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985).

III. Due Process

To state a claim for a violation of due process, a plaintiff must allege that he or she was deprived of life, liberty or property without notice and an opportunity to be heard. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314, 70 S.Ct. 652; see also Mennonite, 462 U.S. at 795, 103 S.Ct. 2706. Opportunity requires a "hearing appropriate to the nature of the case." Id. at 313, 70 S.Ct. 652. Here, plaintiffs contend that Title III of the N.Y. Real Property Tax Law as well as Clinton County's 1999 tax foreclosure proceedings violated due process.

A. Constitutionality of Title III

Plaintiffs contend that Title III failed to provide for proper notice of foreclosure proceedings under all circumstances. Plaintiffs further contend that the default judgment provisions of Title III failed to provide notice of the entry of default judgments, impermissibly shortened the period for vacating default judgments and failed to provide for a redemption period after the entry of default judgments.*fn6 Am. Compl. at ¶ 119.

1. Notice

As a general rule, notice sent by ordinary mail satisfies due process requirements. Mennonite, 462 U.S. at 800, 103 S.Ct. 2706; Mullane, 339 U.S. at 319, 70 S.Ct. 652; Weigner v. City of New York, 852 F.2d 646, 650 (2d Cir. 1988). Indeed, ordinary mail is "an `efficient and inexpensive means of communication' that generally may be relied upon to deliver notice where it is sent." Weigner, 852 F.2d at 650 (quoting Mullane, 339 U.S. at 319, 70 S.Ct. 652). Here, Title III required notices of foreclosure to be sent by ordinary first class mail to property owners and any other person with an interest in the property. N.Y. Real Prop. Tax Law § 1125(1). This personal notice was also supplemented by procedures for both newspaper publications and posting in the enforcing officer's office as well as in the county courthouse. Id. at §§ 1124(1), (3).

Plaintiffs contend that these provisions violated due process because they failed to provide sufficient notice under all circumstances. For example, there were no specific provisions for municipalities to provide heightened notice to known incompetents. The Second Circuit has recognized that "mailed notice may be inadequate . . . where the recipient is known to be someone who could not understand mailed notice." Weigner, 852 F.2d at 650 n. 4 (citing Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956)). Nonetheless, Title III does not "preclude the enforcing officer from issuing, at his or her discretion, . . . notice . . . through means other than first class mail, including but not limited to personal service, [or] registered or certified mail. . . ." N.Y. Real Prop. Tax Law § 1125(4)(a). Thus, under special circumstances where due process may require heightened forms of notice, Title III authorizes the enforcing officer to provide personal notice by means other than first class mail. Therefore, title III was not unconstitutional on this ground.

Plaintiffs also contend that Title III violates due process because it did not contain a procedure for notifying property owners that were unable to receive mail or to send notices to all known addresses. Due process, however, imposes a reasonableness standard and "does not mean that all risk of non-receipt must be eliminated." Weigner, 852 F.2d at 649. Under Title III, personal notice by first class mail was supplemented by publication and posting. N.Y. Real Prop. Tax Law §§ 1124(1), (3). Therefore, the provisions, as written, had a procedure for notifying property owners that were unable to receive mail. See Weigner, 852 F.2d at 651 ("Particularly where mailing is supplemented by other forms of notice such as posting or publication, the risk of non-receipt is constitutionally acceptable."). Further, Title III required personal notice to be sent to the addresses that were "reasonably ascertainable from the public record." N.Y. Real Prop. Tax Law § 1125(1). This is all that due process requires. See Schroeder v. City of New York, 371 U.S. 208, 212-13, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962).

In essence, then, plaintiffs' arguments here appear to contend that Title III was unconstitutional as written because it failed to provide actual notice under all possibly foreseeable consequences. However, "practical considerations [] make it impossible to draw a standard set of specifications as to what is constitutionally adequate notice, to be mechanically applied in every situation." Id. at 212, 83 S.Ct. 279. The proper inquiry, therefore, is not whether Title III provided for actual notice under all circumstances but whether it was a reasonable means likely to inform affected property owners. "As long as the state employs means `such as one desirous of actually informing the [property owner] might reasonably adopt to accomplish [that purpose],' then it has discharged its burden." Weigner, 852 F.2d at 649 (quoting Mullane, 339 U.S. at 315, 70 S.Ct. 652). Title III provided for notice by first class mail, publication and posting under normal circumstances. Title III also vested appropriate discretion in the enforcing officer to use other means of notice when warranted under special circumstances. "`Now and then an extraordinary case may turn up,'" but Title III, as written, was a reasonable method of notifying property owners of foreclosure proceedings, "`and in the great majority of instances no doubt justice will be done.'" Mullane, 339 U.S. at 319, 70 S.Ct. 652 (quoting Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1, 56 L.Ed. 65 (1911)).

The notice provisions of Title III thus satisfied the requirements of due process.

2. Default Judgment

N.Y. Real Prop. Tax Law ยง 1131 states in ...


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