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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,
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.
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
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).
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 ¶
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.
N.Y. Real Prop. Tax Law § 1131 states in ...