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Fortunatus v. Clinton County

United States District Court, N.D. New York

April 4, 2013

TOM FORTUNATUS, Plaintiff,
v.
CLINTON COUNTY, NEW YORK and JOSEPH GIROUX, in his Official Capacity as Clinton County Treasurer and in his Individual Capacity, Defendants

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[Copyrighted Material Omitted]

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For Plaintiff: Mark A. Schneider, Esq., OF COUNSEL, Law Office of Mark Schneider, Plattsburgh, New York.

For Defendants: Robert A. Rausch, Esq., OF COUNSEL, Maynard, O'Connor and Smith, Albany, New York.

OPINION

RANDOLPH F. TREECE, United States Magistrate Judge.

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MEMORANDUM-DECISION AND ORDER

Former Clinton County property owner Tom Fortunatus (" Fortunatus" ) initiated this action, pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated when Defendant Clinton County acquired his property through a tax foreclosure but would not consider reconveyance of his property after the date of redemption as it had done for another taxpayer. Dkt. Nos. 1, Compl. & 32, Am. Compl. In essence, Fortunatus claims that the Defendants discriminated against him based upon race as well as a " class of one" equal protection claim and " denied [him] due process of law by not providing him with a hearing regarding his request for reconveyance of the tax acquired property." Am. Compl. at ¶ ¶ 75-79.

Presently before the Court are the parties' competing Motions for Summary Judgment. Defendants were the first to file a Motion for Summary Judgment. Dkt. No. 42, Defs.' Mot. for Summ. J, dated Nov. 27, 2012.[1] Shortly thereafter, Fortunatus filed a Cross-Motion for Summary Judgment, which, additionally in material respects, opposes Defendants' Motion. Dkt. No. 46, Pl.'s Cross-Mot. for Summ. J., dated Dec. 19, 2012.[2] Defendants

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filed an Opposition to Fortunatus's Cross-Motion, Dkt. No. 47,[3] to which Fortunatus filed a Reply, Dkt. No. 49.[4] For the foregoing reasons, the Defendants' Motion for Summary Judgment is granted and Fortunatus's Cross Motion is denied.

I. BACKGROUND[5]

A. Tom Fortunatus

Fortunatus, who owned property in the Town of Plattsburgh, County of Clinton, had a history of being late in paying his property taxes, had been a party to prior foreclosures, and, on a previous occasion, the property was actually foreclosed. On that occasion, Fortunatus initiated a state lawsuit to vacate the default judgment while he concomitantly commenced a federal action challenging the constitutionality of the redemption deadline and alleging that he was denied due process and equal protection. Dkt. No. 42-34, Defs.' 7.1 Statement at ¶ ¶ 17-18.[6] His litigation efforts were unsuccessful and he was required to redeem his property. Id.

For the tax years 2009 through 2011, Fortunatus did not pay his real estate taxes. Id. at ¶ 3. Fortunatus admitted to receiving most of the reminders, warning letters, and notices and was aware that he had not paid his property taxes. Dkt. No. 42-13, Ex. L, Fortunatus Dep., dated June 4, 2012, at pp. 11, 17-18, & 27; Dkt. Nos. 42-6 through 42-12, Exs. E-K (notices). Fortunatus had been sick for an extended duration, and because of his illness, during September 2010, Fortunatus and his daughter left for his native country of Uganda and did not return to Clinton County until April 2011. Fortunatus Dep. at pp. 19-21 & 32; Defs.' 7.1 Statement at ¶ ¶ 7 & 12. In his absence fro this Country, Fortunatus's neighbor, Shirley Davis, was authorized by him to receive his mail. Fortunatus Dep. at p. 22. On October 8, 2010, a Notice and Petition for Foreclosure was served at Fortunatus's address by certified mail to which Ms. Davis accepted service by signing the certified mail receipt. See Dkt. Nos. 42-14, Ex. M & 42-15, Ex. N. On March 18, 2011, New York State Supreme Court Acting Justice Patrick McGill signed an order and judgment of tax foreclosure on numerous properties, including Fortunatus's, transferring title of the properties to Clinton County. Dkt. No. 42-18, Ex. Q. Three months later, on June 2, 2011, Fortunatus's property was

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sold at a public auction. See generally ...


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