Liotta v L & L Assoc. Holding Corp.

[*1] Liotta v L & L Assoc. Holding Corp. 2009 NY Slip Op 50907(U) [23 Misc 3d 1124(A)] Decided on April 6, 2009 Supreme Court, Nassau County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2009
Supreme Court, Nassau County

Mary V. Liotta and Roxana Espinoza, Plaintiffs,

against

L & L Associates Holding Corp., L & L Associates Holding Corp. D/b/a L & L (2/06) Associates, L & L (2/06) Associates, County of Nassau, Steven Conkling, in his capacity as Treasurer of Nassau County, Maureen O'Connell, in her capacity as Nassau County Clerk, Harvey Levinson, in his capacity as Nassau County Assessor, and "John Doe No. 1" to "John Doe No. 2" inclusive, the last two names being unknown to Plaintiffs, the, Defendants last named in quotation marks being parties, all of whom may claim some estate or interest in the real property which is the subject of this action and which estate or interest is adverse to Plaintiffs' interest, said names being fictitious, their true names being unknown to Plaintiffs, Defendants.



21575/08



Forchelli, Curto, Crowe, Deegan, Schwarts, Mineo & Cohn, LLP

Attorneys for Plaintiffs

Levy & Levy, Esqs.

Attorneys for Defendants

L & L Associates Holding Corp.

Nicholas Sarandis, Esq.

Deputy County Attorney

Thomas Feinman, J.

Relief Requested [*2]

The plaintiffs move, by way of order to show cause, for an order preliminarily and permanently enjoining and restraining the defendants, L & L Associates Holding Corp., L & L (2/06), and LL (2/06) Associates, their agents, servants and employees, and all persons acting on their authority, from exercising any rights claimed to be derived or obtained under the tax deed issued by Steven D. Conkling, as Treasurer of the County of Nassau, dated August 11, 2008, (hereinafter referred to as the "tax deed"), with respect to property located at 203 Willis Avenue, Mineola, New York, known as Section 9, Block 409 and Lots 460 - 461 on the Nassau County Land and Tax Map, and a further order directing the defendants, and anyone acting in concert or participation with the defendants, to deposit into Court any and all rents, income and profit the defendant received from the subject premises since it obtained the tax deed, and an order appointing a temporary receiver to collect all rents, income and profit from the subject premises and to administer the running of the subject premises on the grounds that the moving party has an apparent interest in the subject premises. The defendants submit opposition. The plaintiffs submit a reply affirmation.

That pursuant to the fully executed so-ordered stipulation dated December 3, 2008, pending the determination of the motion, (1) all rents and additional rents both collected from the date hereof, shall be deposited in escrow with the law firm of Levy & Levy at 12 Tulip Drive, Great Neck, New York, ("escrow agent"), (2) all expenses relating to the building shall be paid by the escrow agent from the rents collected. The escrow agent agrees to copy Richard Blumberg, Esq., attorney for plaintiffs, with all bills and/or invoices along with copies of all checks regarding said payments, (3) the escrow agent agrees to provide a monthly accounting of collection and disbursements, (4) plaintiffs agree not to interfere with any defendants' collection of rents, (5) the L & L defendants acknowledge that they have been served with the RJI, OSC, Complaint and Notice of Pendency relation to this action, and (6) Order to Show Cause shall be returnable January 22, 2009, opposition papers due by January 15, 2009. The instant motion was thereafter submitted on March 5, 2009.

Background

The plaintiffs initiated this action to set aside the tax deed dated August 11, 2008 for the subject premises. The plaintiff, Mary V. Liotta, avers that the deed for the subject premises, a residential apartment building consisting of apartments on three floors, was in her name. Ms. Liotta submits that she had missed one payment, the second-half school tax, in the sum of Seventeen Thousand Three Hundred Eighty-Two and 42/100 Dollars, ($17,382.42), which became a tax lien against the subject premises. The plaintiff, Roxana Espinoza, avers that she currently resides in one of the apartments at the subject premises, apartment 3B, and has resided there for approximately eight years. Ms. Espinoza provides that she was never served with the Notice to Redeem. The plaintiffs set forth that the defendant, "L & L (2/06) Associates", was a nonexistent entity at the time L & L purchased the subject tax lien, that L & L failed to serve all occupants of the subject premises with the Notice to Redeem, and that L & L failed to serve plaintiff, Mary Liotta's legal representative with the Notice to Redeem as required by the applicable statutes.

The defendants, in opposition, provide that the plaintiffs are not entitled to injunctive relief, [*3]that L & L's use of an assumed name does not effect the validity of the tax lien purchased, that the assumed name certificate can be filed at any time, albeit, here, it was filed after the purchase of the tax lien. Additionally, the defendants submit that the plaintiff, Roxana Espinoza, was duly served as occupant Edward Martinez of apartment 3B, was served.

Discussion

In order to obtain a preliminary injunction, the party seeking the relief must demonstrate a likelihood of success on the merits, that irreparable harm or injury will occur if the relief is not granted and that the balancing of the equities favor the party seeking the preliminary injunction. (W.T. Grant Co. v. Srogi, 52 NY2d 496; Town of East Hampton v. Buffa, 157 AD2d 714). A prima facie showing of a reasonable probability of success is sufficient to obtain a preliminary injunction. (Weissman v. Kubasek, 112 AD2d 1086). The existence of issues of fact for trial does not preclude the Court from issuing a preliminary injunction in the appropriate circumstance. (Ma v. Lien, 198 AD2d 186).

An owner cannot be deprived of title to his property unless there has been "strict compliance with the provisions of the tax statutes, and these statutes are to be liberally construed in the owner's favor". (Samara v. City of New York, 535 F. Supp. 673, citing Thatcher v. Powell, 5 L.Ed. 221). The purpose of a prescribed statutory process for assessment, sale and redemption is to compel payment of taxes overdue, and in default of such payment to transfer title of real estate from the owner to another without the owner's consent, and therefore, "[t]his being the nature of the process, the owner's title may not be divested unless statutory requirements are strictly observed". (Samara, supra, citing Helterline v. People, 295 NY 251, also referring to Accord Petition of the Town of Brookhaven, 78 Misc 2d 499; DeStefano v. Kaufman, 66 Misc 2d 302; and R.M. Investors Corp. v. Maggi,104 Misc 2d 41 ("plaintiff had not yet filed its certificate of incorporation when hammer was struck at auctionand, as such, was incapable of placing a bid at auction"). The Court of Appeals in Kiamesha Development Corporation v. Guild Properties, Inc., 4 NY2d 378, set aside a tax deed issued to Guild Properties, Inc. as being void because the tax certificate was issued prior to the corporation filing a certificate of incorporation. "The deed was void because the tax sale certificate was issued to the corporation prior to its filing of a certificate of incorporation, and without any assignment from the purchase at the tax sale." (Id.)

New York Business Corporation Law §202(b) provides that: "No corporation shall do business in New York State under any name, other than that appearing in its certificate of incorporation, without compliance with the filing provisions of section one hundred thirty of the general business law governing the conduct of business under an assumed name."

Pursuant to New York General Business Law §130, a corporation cannot operate or do business under an assumed named unless it first files the appropriate application with the Secretary of State and then records this application in all counties in which it intends to operate or do business with that assumed name. [*4]

Upon the record herein, it is undisputed that L & L did not file the requisite application to do business as "L & L (2/06) Associates" with the Secretary of State until after the tax lien sale at issue. Additionally, the opposition has not provided complete evidence of service of the notice to redeem, as the opposition lacks evidence that L & L filed the actual "green card" with the County Treasurer indicating that Martinez was served. (NCAC §5.51.0( c); Glanz v. Scaduto, 96 Misc 2d 1004).

In light of the foregoing, the plaintiffs have demonstrated the likelihood of success on the merits, that irreparable harm or injury will occur if the relief is not granted, and that the balancing of the equities favor the party seeking the preliminary injunction. Additionally, the circumstances sub judice warrant the appointment of a temporary receiver to collect all rents, income and profit from the subject premises and to administer the running of the subject premises.

Conclusion

This Court finds that plaintiffs have made a prima facie showing of reasonable probability of success to obtain a preliminary injunction, and plaintiffs' request that this Court appoint a temporary receiver to collect all rents, income and profit from the subject premises and to administer the running of the subject premises is granted.

The plaintiff is hereby directed to Settle Order on Notice. A copy of this order with notice of entry shall accompany the proposed order.

The parties are hereby directed to appear for a Preliminary Conference which shall be held at the Preliminary Conference part located at the Nassau County Supreme Court on the 13th day of May, 2009, at 9:30 A.M. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminary Conference Clerk and the attorneys for the defendants.

E N T E R :

________________________________

J.S.C.

Dated: April 6, 2009 [*5]

cc: Forchelli, Curto, Crowe, Deegan, Schwartz, Mineo & Cohn, LLP

Levy & Levy, Esqs.

Nicholas Sarandis, Esq.