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Tom Fortunatus v. Clinton County

October 2, 2012


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


On August 1, 2012, this Court issued a Discovery Order, permitting, inter alia, Fortunatus an opportunity to depose James Langley, Chair of the Clinton County

Legislature. Dkt. No. 15, Dec. & Order. In anticipating that there may be disagreement regarding the scope of the interrogation, particularly regarding matters discussed during an executive session of the County Legislature, the Court granted the parties an opportunity to submit briefs as to whether those discussions are privileged or could be subject to inquiry. Rather than promptly filing briefs on this matter with the Court, the parties apparently engaged, albeit unsuccessfully, in further discussion on the parameters of the depositions. Realizing that their disagreement requires a judicial resolution, the Court granted Fortunatus permission to file a motion to compel. Dkt. No. 17, Order, dated Aug. 22, 2012.

On August 27, 2012, Fortunatus filed his Motion to Compel seeking an order preventing Chairman Langley from refusing to answer questions during his deposition by asserting a privilege; he also seeks an award of attorney fees. Dkt. Nos. 18-21.*fn1

Defendants oppose the Motion. Dkt. No. 22.


A. The Nature of the Litigation

Briefly, Fortunatus owned a house in Clinton County which the County took by a default judgment for tax foreclosure in March 2011. While away in Uganda recovering from an illness, a notice of foreclosure was forwarded to his residence by certified mail, which was accepted by his neighbor, Shirley Davis, and, on March 21, 2011, New York State County Judge McGill signed an order and judgment of tax foreclosure against Fortunatus, transferring title of the property to Clinton County. Fortunatus became aware of the foreclosure upon his return to Clinton County in April 2011. Three months later, the property was sold at a public auction on June 2, 2011. See generally Dkt. No. 1, Compl. After the sale, Fortunatus discovered that another landowner, whose property was subject to foreclosure action at about the same time, was allowed to redeem his property through a private sale. Fortunatus alleges that this landowner, Mark Liberty, was allowed to personally appeal to the entire Clinton County Legislature and to enter into settlement with the County for a reconveyance of his property, wheras he was denied a similar opportunity to speak with the Legislature and/or redeem his property. Fortunatus alleges that because he is a black man, Defendants deprived him of his property without due process and equal protection of the law. See generally Compl. More saliently, Fortunatus contends that the Defendants have not provided a plausible explanation why they returned Mr. Liberty's property for payment of back taxes but would not extend him the same courtesy. Absent a plausible explanation, Fortunatus posits that Defendants discriminated against him because of his race. For this reason, Fortunatus wants to explore what, if anything, was discussed during the Clinton County executive session relative to settling Liberty's litigation and allowing him to redeem his property. See generally Dkt. No. 18, Mot. to Compel, dated Aug. 27, 2012. Defendants asserts that those discussions, if any, are privileged under New York Public Officer's Law § 105, and moreover, are not relevant to this litigation. See generally Dkt. No. 22, Defs.' Opp'n. Contrary to the resolution of most discovery matters, which are usually succinct and prompt, a decision in this matter defies a laconic ruling and cannot be rendered resting solely on the allegations within the Complaint. Indeed, further history is required in order to put into context the exact nature of this specific discovery demand and an understanding of the opposition thereto. Context necessitates the Court to delve into the underlying sequence of events of both Liberty's and Fortunatus's foreclosures.

B. Mark Liberty's Foreclosure Action

As the submissions reveal, Liberty's wife, who was ill, had not told him that the real property taxes had not been paid nor that she had received a notice of foreclosure. By the time Liberty learned of the foreclosure, the deadline for redemption of property had expired and the County Treasurer's Office had informed him that an offer to pay the taxes was too late. Dkt. No. 22, Robert Rausch, Esq., Aff., dated Aug. 31, 2012, at ¶ 17. In order to forestall the sale of the property, Liberty filed a motion to vacate the foreclosure, maintaining that the County should accept his late offer of payment prior to the auction of the property. Liberty and the County appeared before Judge McGill, whom ultimately ruled that the foreclosure process was valid and that Liberty's hardship was not a legitimate basis to set aside the foreclosure. Id. at ¶ 18; Dkt. No. 22-1, Ex. G, Liberty Hr'g. Tr., dated May 31, 2011. During this Hearing, the parties debated whether New York Real Property Tax Law § 1166 gave the County Legislature authority to allow private sale of tax foreclosed properties.*fn2 See generally Liberty Hr'g. Tr. Liberty contended that § 1166 provides the Clinton County Legislature with the authority to reconvey the property back to him, while the County argued that by virtue of this statute only the County Treasurer, Defendant Giroux, who is the enforcement officer, has the authority to license such a private reconveyance. Id. at pp. 4-7. It is uncertain when Liberty may have appeared before the County Legislature, or whether he was invited or just permitted to address the legislature upon his request, but his appeal for a private sale of his property was rejected. Rausch Aff. at ¶ 19; Liberty Hr'g. Tr., at p. 6.

Assessing the County's position as to whom it believes has the ultimate power to make a decision relative to a private sale, Judge McGill asked: So is it an Article 78 proceeding against Mr. Giroux that's required? Has he made the wrong decision? . . . So you have an Article 78 proceeding against Mr. Giroux, right? He's the one that if that's the case, he's the controlling entity, is he not?

Under Real Property Tax Law § 1166, a taxing district is not required to sell foreclosed property at public authorization; private sales are contemplated as well, if there is a majority vote of the governing body of the tax district. First Nat. Bank of Downsville v. Atkin, 183 Misc.2d 425, 427 (N.Y. Sup. Ct. 2000). Furthermore, there is no authority stating that a property owner who fails to redeem property prior to the foreclosure is precluded from subsequently purchasing that property back from the taxing district, if the requisite approval can be secured from the Board. Id.

Liberty Hr'g Tr. at pp. 7-9.

Presumably provoked by this exchange between the Court and the parties, Liberty opined that he would commence an Article 78 proceeding before the end of that day, a promise he consummated. Id. at p. 12; Dkt. No. 22-1, Ex. H, Liberty v. Clinton County Verified Pet., dated May 31, 2011. Immediately upon receiving Liberty's Article 78 petition, Judge McGill removed Liberty's property from the public sale slated for June 2, 2011. Dkt. No. 20-1, Liberty v. Clinton County Order to Show Cause, dated May 31, 2011, at p. 2. Shortly thereafter, before this Article 78 was decided, Liberty and Clinton County entered into a settlement agreement whereby Giroux, as the County Treasurer and enforcement officer, agreed to ask the County Legislature to consider a reconveyance of Liberty's property. Rausch Aff. at ¶ 20; Dkt. No. 20-5, Liberty Settlement Agreement, dated July 25, 2011.*fn3 On July 13, 2011, upon Giroux's and Liberty's presentations, the Clinton County Legislature ...

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