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In the Matter of the Foreclosure of Tax Liens By County of Sullivan.

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


December 27, 2012

IN THE MATTER OF THE FORECLOSURE OF TAX LIENS BY COUNTY OF SULLIVAN. COUNTY OF SULLIVAN,
RESPONDENT; ALEKSANDER CORPORATION, APPELLANT.

Appeal from an order of the County Court of Sullivan County (McGuire, J.), entered February 27, 2012, which, in a proceeding pursuant to RPTL article 11, denied respondent's motion for joinder of necessary parties.

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

MEMORANDUM AND ORDER

Calendar Date: November 19, 2012

Before: Peters, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.

Respondent, a religious corporation, owned two parcels of real property in the Town of Bethel, Sullivan County that had been granted tax-exempt status by the Town pursuant to RPTL 420-a. In 2009, as a result of a mechanic's lien foreclosure action against respondent, the two parcels were transferred to Wyde Lumber and Supply Corporation which, in turn, conveyed the parcels to Alan Madnick. As a result of these transfers, the tax-exempt status of the property was removed. Approximately one year later, respondent's ownership of the two parcels was restored when the aforementioned conveyances were set aside by Supreme Court (Sackett, J.) pursuant to a stipulation between respondent, Wyde and Madnick. Petitioner subsequently commenced this in rem tax foreclosure proceeding pursuant to RPTL article 11 to foreclose delinquent tax liens on the subject parcels for the period of time the tax exemption was removed. Respondent answered and thereafter moved, pursuant to CPLR 401, for leave to join the Town, its Assessor and Liberty Central School District as necessary parties. County Court denied the motion, prompting this appeal.

Necessary parties are those "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action" (CPLR 1001 [a]). "In an RPTL article 11 foreclosure proceeding, an unpaid tax lien is presumptively valid, and the respondent bears the burden of establishing any affirmative defense, procedural defect or invalidity of the lien" (Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi], 77 AD3d 1146, 1147 [2010] [citations omitted]; see RPTL 1134; Kennedy v Mossafa, 100 NY2d 1, 8 [2003]). While respondent may challenge the validity of the tax as a defense to foreclosure (see RPTL 1134), the only relief available to it in this proceeding is dismissal of the foreclosure petition as to the affected parcels (see RPTL 1130 [1]; 1136 [2]). The Town, the Assessor and the School District have no interest in the subject parcels and need not be parties for such relief to be granted, nor would they be adversely affected by a judgment either granting or dismissing the foreclosure petition. Accordingly, County Court properly denied the motion to add them as necessary parties to this proceeding.

Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121227

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