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Kese Industries v. Roslyn Torah Foundation

November 17, 2010


The opinion of the court was delivered by: Lippman, Chief Judge.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

This appeal requires us to interpret whether the term "legal representative," which ordinarily denotes the executor or administrator of an estate, may encompass a party's retained legal counsel in a pending action. This question comes to us in the context of Nassau County Administrative Code section 5-51.0, which sets out the duty of a tax lien purchaser to provide notice that a tax deed will be issued unless the right to redeem the lien is exercised. We conclude that the mortgagee's attorney in a pending foreclosure action concerning the same property is not a "legal representative" within the meaning of section 5-51.0, and that the court-appointed referee in a foreclosure action is not an interested party entitled to notice under section 5-51.0.

Roslyn Torah Foundation (RTF), a not-for-profit corporation that operates an orthodox synagogue and high school, purchased property in Roslyn, Nassau County, from the Theodore Roosevelt Council of the Boy Scouts of America (the Boy Scouts) in January 1998. At the time, RTF and the Boy Scouts executed a purchase money mortgage on the property for the principal amount of $1.2 million. RTF maintained a synagogue and high school on part of the parcel and the rest remained undeveloped. Three years later, RTF defaulted on its mortgage payments, causing the Boy Scouts to commence a foreclosure action in May 2002. At the time, notice of pendency was filed on the property, which expired no later than May 2005 and was not renewed. In October 2002, the Boy Scouts assigned the note and mortgage to respondent Kese Industries (Kese). Kese retained a foreclosure attorney to prosecute the foreclosure action begun by the Boy Scouts. Supreme Court entered a judgment of foreclosure and sale against RTF in March 2005 and appointed a referee to conduct the foreclosure sale. The sale was thereafter delayed by RTF's bankruptcy filings, which were ultimately dismissed by federal court.

In December 2003, RTF transferred all its property except for the lot that housed the synagogue and school to Roslyn Gate Corporation (Roslyn Gate). RTF failed to make any additional mortgage payments to Kese for several years and also defaulted on property taxes for the 2003-2004 school year and 2004 general tax year, when it neglected to file for tax exempt status.

In response to the default on property taxes, in February 2005, Nassau County issued a tax lien to appellant Gillen Living Trust, d/b/a Jumbo Investments for $67,596.67. Because of a delay in recording the prior subdivision and sale of part of RTF's property to Roslyn Gate, the tax lien was on the entire parcel of land. That is, both RTF and Roslyn Gate's lots were subject to the tax lien.

Thomas Gillen, as trustee of the Gillen Living Trust, served a notice to redeem the tax lien on Kese, Roslyn Gate, RTF and others in November 2006. However, it is uncontested that Gillen did not serve either Kese's foreclosure attorney or the foreclosure referee. Neither Kese nor Roslyn Gate exercised their right to redeem the property from the tax lien. Consequently, Nassau County issued a tax deed to Gillen, who then transferred ownership of the entire parcel of land to Siat Foundation by quitclaim deed for $444,000. Siat Foundation is a charitable organization affiliated with RTF that allowed RTF to continue operating its school and synagogue.

Kese and Roslyn Gate commenced this hybrid action/CPLR article 78 proceeding in June 2007 seeking an order (1) enjoining Siat from transferring the tax deed, (2) declaring the conveyance of the tax deed void, (3) declaring the tax deed void because Gillen did not adhere to the notice requirements of the Administrative Code, (4) declaring the tax deed void because no taxes were due, (5) declaring that any real estate taxes owed be allocated to each of the lots separately and not as a single parcel, (6) declaring the sale of the original tax lien void, (7) directing the Nassau County Treasurer to rescind the tax deed, and (8) directing the Nassau County Treasurer to allow petitioners to redeem the tax lien.

Finding for Kese and Roslyn Gate, Supreme Court (1) voided and vacated the tax deed issued to Gillen, (2) vacated the quit claim deed Gillen transferred to Siat because the notice to redeem was defective, (3) denied Gillen's motion seeking to dismiss the petition, (4) denied Kese's application for a tax exemption and other tax relief on the subject property because the time to apply for this relief had expired, and (5) held that Kese or Roslyn Gate or both might redeem the tax liens by paying any or all taxes determined to be due.

Supreme Court relied on Second Department precedent holding that section 5-51.0 of the Nassau County Administrative Code requires notice to be served on "legal representatives," which include a mortgagee's foreclosure attorney (see Matter of Hua Nan Commercial Bank v Albicocco, 270 AD2d 265 [2000]). The tax lien was found to be void inasmuch as Gillen did not serve Kese's attorney. The Appellate Division affirmed, finding the case controlled by Hua Nan. Accordingly, the Court ruled that "the law firm was a legal representative of a party entitled to notice" (62 AD3d 880, 881 [2d Dept 2009]). The Court did not reach the question of whether Gillen had complied with the other requirements of the notice provision, specifically whether Gillen was also obligated to serve the court-appointed referee in the foreclosure action.

Although the Second Department adhered to its own recent precedent in Hua Nan, the outcome is predicated on a flawed construction of Nassau County Administrative Code section 5-51.0 (a), which provides:

"The holder of any tax lien which is not satisfied, shall give notice to the occupant, owner in fee, trustee, mortgagee, judgment creditor or purchaser at any other county tax sale of a tax lien affecting the same property, and the heirs, legal representatives and assigns of any or either of them . . . and any other person having a lien, claim or interest appearing of record on the premises affected by such sale. The words "appearing on record" shall be construed to refer to any person on whom a notice is hereby required to be served, the nature and degree of whose Interest appears from the records kept by the County Clerk, County Treasurer, Surrogate of the County and receiver of taxes for the town or city in which the property is located" (emphasis added).

A legal representative is, in the ordinary sense, one "who manages the legal affairs of another because of incapacity or death" (see Black's Law Dictionary 1416-1417 [9th ed 2009]). Whereas an attorney of record is an agent of a party of interest, a legal representative is not an agent, but a principal who has been assigned the rights and obligations of the party.

Consistent with this definition, this Court, going back to the late 1800s, has held "the words 'legal representatives' mean ordinarily executors or administrators, and that meaning will be attributed to them in any instance unless there be facts existing which show that the words were not used in their ordinary sense, but to denote some other and different idea" (Sulz v Mutual Reserve Fund Life Assn., 145 NY 563, 574 [1895]; see also Griswold v Sawyer, 125 NY 411, 413 [1891]; Matthews v American Cent. Ins. Co., 154 NY 449, 462-463 [1897]). Even in the rare instances where the term has been found to signify something other than "executors or administrators," the meaning has not extended to a party's attorneys (see e.g. Greenwood v Holbrook, 111 NY 465, 471 [1888] [holding that in a certain agreement, "the phrase 'legal representatives' relates to children or descendants, and not executors or administrators"]).

This definition of "legal representative" corresponds with the case law of virtually every other state and federal court that has defined the term (see e.g. Briggs v Walker, 171 US 466, 471 [1898]; Commissioner of Corps. & Taxation v Second Natl. Bank, 308 Mass 1, 8 [Mass 1941]; Warnecke v Lembca, 71 Ill 91, 92 [Ill 1873]; McMahan v Greenwood, 108 SW3d 467, 487 [Tex Ct App 2003]). The phrase "legal representatives" also appears in the Federal Rules of Civil Procedure. In that context, the federal courts have consistently interpreted the meaning to exclude attorneys qua attorneys (see e.g. Western Steel Erection Co. v US, 424 F2d 737, 739 [10th Cir 1970] [holding that "an attorney does not have standing to move under (Federal Rule of Civil Procedure) 60(b) as a 'legal representative'" because "[a] 'legal representative' under the rule is one who by operation of law is tantamount to a party in relationship to the matter involved in the principal action"]; see also Rende v Kay, 415 F2d 983, 985 [DC Cir 1969] ["Although the attorney for the defendant was retained to 'represent' the deceased as his counsel, he is not a person who could be made a party, and is not a 'representative of the deceased party' in the sense contemplated by (Federal Rule of Civil Procedure) 25(a)(1)]."). Indeed, the only case other than Hua Nan that sustains the position that a legal representative may ...

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