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Tupaz v. Clinton County

June 7, 2007


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiffs commenced the instant action pursuant to 42 U.S.C. § 1983 claiming that they have been deprived of their real property without due process of law in violation of the Fourteenth Amendment to the United States Constitution. Plaintiffs also contend that New York Real Property Tax Law §§ 1125 and 1131 are unconstitutional. After the Court dismissed the action on summary judgment, the United States Court of Appeals for the Second Circuit vacated the judgment and remanded for further proceedings. See Luessenhop v. Clinton County, 466 F.3d 259 (2d Cir. 2006). Presently before the Court are the parties' cross-motions for summary judgment.


Plaintiffs owned two adjacent vacant lots in Clinton County, New York. On May 21, 2002, May 31, 2002, August 8, 2002, January 1, 2003, and February 11, 2003, Clinton County ("the County") sent letters to Plaintiffs advising them that back taxes remained due and owing and that foreclosure actions would be commenced if the taxes were not paid. These letters were sent, via first-class mail, to 4675 Amboy Road, Staten Island, New York, the address listed on the County's tax rolls. The letters were not returned as undeliverable, but the Tupazes did not respond. Plaintiffs do not recall receiving these letters.

"On October 10, 2003, the County sent Notices and Petitions of Foreclosure to all delinquent taxpayers, including the Tupazes, via certified mail . . . . These notices were intended to inform the Tupazes that the final date for redemption was January 16, 2004. Again, the Tupazes did not respond, prompting the County to proceed with the foreclosure." Luessenhop, 466 F.3d at 263. In addition to the notices sent to Plaintiff's by certified mail, the County published notice regarding the foreclosure in two Clinton County newspapers once a week for three non-consecutive weeks.

The parties dispute whether the Notice of Foreclosure sent by certified mail actually was received. The County submitted a print-out from the United States Postal Service website confirming that the letter was delivered at 2:46 p.m. on October 16, 2003, and that a "line" was drawn through the signature section of the green certified mail receipt. The Tupazes claim that it was impossible for anyone at the Staten Island residence to have accepted the County's letter on October 16, 2003: the Tupazes were both working in Brooklyn that day and their adult son was away at Iona College in New Rochelle, NY. They further point out that the "line" drawn through the signature box of the return receipt is evidence that no one received the item of certified mail.

Luessenhop, 466 F.3d at 263.

Regardless of the parties' dispute regarding actual receipt of the October 10, 2003 Notice and Petition sent via certified mail, there is no genuine dispute as to Defendants' belief as to whether the Notice and Petition were delivered. In this regard, Defendant Janet Duprey, Clinton County Treasurer, submitted an affidavit attesting as follows:

11. In mid-October, 2003, the green certified mailing receipt attached to the Tupaz mailing was returned to my office with a mark in the signature line indicating that it had been delivered and received on October 16, 2003.

12. Pursuant to standard office procedure, when the receipt was returned, my staff would verify that it was indeed signed. When the Tupaz receipt was returned to my office, a staff member noted the line in the signature box and brought it to my attention. Based on my review of the receipt and the plaintiffs' history of non-payment, I determined that there was no reason to believe that it was not indeed received and acknowledged.

13. On that same day or shortly thereafter, we used the U.S. Post Office online "Track and Receive" service and verified it had been delivered and received on October 16th at 2:46 p.m. We rely upon the U.S. Post Office to deliver our mailings and assume that they actually deliver the mail we provide them. We have not had any prior problems with the Post Office that would cause me to suspect that they were not actually delivering the plaintiffs' mail.

14. In my experience, it is not at all unusual to receive a certified mail receipt with an illegible signature or simply a mark in the signature box indicating its receipt. I have found that often people simply mark a certified mail receipt, rather than signing it, and recall occasions when a receipt would have some unusual mark, and the recipient would later pay their taxes. When we receive just a detached receipt, rather than the entire envelope back, we assume that the mailing has indeed been delivered and received.

Duprey Aff. ¶¶ 11-14.

Although Plaintiffs proffer arguments in an attempt to raise questions of fact as to what Clinton County and Janet Duprey knew or should have known regarding delivery of the certified mailing, the arguments are not supported by the record. For instance, Plaintiffs claim that Defendants were notified by the U. S. Post Office that the Notice sent by certified mail might not have been delivered. There is no evidence of this. Rather, Defendants received a marked certified mail receipt, and confirmation of delivery was provided by the U.S. Post Office's on-line "Track and Confirm" service. Defs.' Exs. J, K. Also, contrary to Plaintiffs' contention that the word "signature" was crossed out on the certified mail receipt card, the word is not crossed out on the certified mail receipt card. See Defs' Ex. S. In contrast to Plaintiffs' claim that Defendants received notice from the U.S. Post Office in April 2004 that the certified mailing was not delivered, the cited letter does not support this contention. Pls.' Ex. H. Rather, the cited letter provides in pertinent part: "The delivery record shows that this item was delivered on 10/16/2003 at 2:46 PM in Staten Island, NY 10312. There is no delivery signature on file for this item." Id. The lack of a delivery signature on file with the U.S. Post Office does not negate the fact that the confirmation of delivery card was returned to Clinton County. Defs.' Ex. S.

There is no dispute that Plaintiffs did not contact the County prior to the redemption deadline to inquire into the status of a foreclosure proceeding or to pay their back taxes. As a result, on February 20, 2004, a default judgment was entered transferring title of Plaintiffs' properties to Clinton County. Def. Local Rule 7.1(a)(3) Stat. of Mat. Facts Not in Dispute ("Def. L. R. 7.1(a)(3) Stat.") ΒΆ 15. On or about March 31, 2004, Alexander Tupaz called ...

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