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In the Matter of Mary v. Kevin P. Keough

State of New York Supreme Court, Appellate Division Third Judicial Department


December 13, 2012

IN THE MATTER OF MARY SMERECKI, ON BEHALF OF JANINA SMERECKI, APPELLANT,
v.
KEVIN P. KEOUGH, AS DIRECTOR OF BROOME COUNTY REAL PROPERTY TAX SERVICE, RESPONDENT.

Appeal from a judgment of the Supreme Court (Lebous, J.), entered April 3, 2012 in Broome County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's request for a hardship sell-back of certain real property.

The opinion of the court was delivered by: Mercure, J.P.

MEMORANDUM AND ORDER

Calendar Date: October 18, 2012

Before: Mercure, J.P., Spain, Stein, McCarthy and Garry, JJ.

Petitioner is the daughter and attorney-in-fact of Janina Smerecki, the former owner of real property located in the Town of Sanford, Broome County. In November 2010, respondent commenced an RPTL article 11, in rem proceeding to foreclose delinquent tax liens on the property. Neither Smerecki nor petitioner filed an answer; rather, in September 2011, petitioner requested a "hardship sell-back" of the property based upon her mother's deteriorating physical and mental condition. Respondent denied the request, and Broome County acquired title to the property via an October 2011 judgment (see RPTL 1123 [8]; 1136 [3]). Petitioner appealed respondent's denial of her sell-back request to the Finance Committee of the Broome County Legislature, which affirmed, prompting this proceeding. Supreme Court, finding no "evidence of fraud or illegality," and also finding a "rational[] basis" for respondent's determination, dismissed the petition. Upon petitioner's appeal, we now affirm.

Inasmuch as it is undisputed that the tax lien was valid and respondent followed all proper procedures in foreclosing the lien, "any property interests held by [Smerecki] were lawfully extinguished as of the expiration of the[] right to redemption and the entry of the judgment of foreclosure" (Matter of Orange County Commr. of Fin. [Helseth], 18 NY3d 634, 640 [2012]). That is, the County had no legal obligation to sell the property back once the valid judgment of foreclosure awarded it title (see Quick v County of Broome, 302 AD2d 788, 789 [2003]; Key Bank of Cent. N.Y. v County of Broome, 116 AD2d 90, 92 [1986]). Nevertheless, petitioner challenges the denial of her hardship sell-back request as arbitrary and capricious, and without a rational basis.*fn1

Pursuant to Broome County Charter and Administrative Code § 222-13, "the Finance Committee of the Broome County Legislature or [its] designee shall have, in its sole discretion, . . . the right to remove any parcel or parcels of land from sales lists or from auction, where, in the judgment of said Committee, an unusual or unique situation or hardship case is presented which would require further consideration." Such a release is in the nature of "a courtesy extended to the previous landowner, but its mere availability should not be equated with the establishment or guarantee of a property right" (Matter of Orange County Commr. of Fin. [Helseth], 18 NY3d at 640) or "a routine right of the petitioner" (Matter of Dwyer v Lindsay, 23 NY2d 562, 565 [1969]). While petitioner detailed her mother's declining health and deteriorating mental condition after suffering heart attacks and a stroke, respondent provided a factually-supported, rational basis for his determination that a sell-back was not justified. Specifically, as Supreme Court noted, respondent indicated that, although petitioner was aware that Smerecki's health issues had resulted in her failure to pay taxes on various properties and petitioner had entered into an installment agreement with Delaware County, she did not attempt to resolve the tax lien in Broome County until six months after the deadline to redeem the property had passed. Moreover, respondent noted that the property at issue was not Smerecki's primary residence. Under these circumstances, it cannot be said that respondent's determination constituted an abuse of discretion or was irrational.

Spain, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court


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