Robinson v Singh
Annotate this CaseDecided on June 30, 2009
Sur Ct, Nassau County
Abraham Robinson and Tiffany Robinson, Individually and as Co-Administrators of Estate of Abraham Lincoln Calhoun a/k/a Abraham L. Calhoun, Deceased, Plaintiffs,
against
Amar Singh and Valarie Singh, his wife, and Countrywide Home Loans, Inc., Old Republic National Title Insurance Company and Stewart Title Insurance Company, Defendants.
Amar Singh and Valarie Singh, his wife, Third Party Plaintiffs,
against
Central Properties Holding, Inc., Third Party Defendant.
318282
Solomon & Siris, P.C. (attorney for Countrywide Home Loans, Inc.)
50 Charles Lindbergh Blvd., Suite 505A
Uniondale, NY 11553
Stanley Edward Bogal, Esq. (attorney for plaintiff)
471 N. Broadway, Suite 112
Jericho, NY 11753
Jerry F. Kebrdle, II, Esq. (attorney for defendants Amar Singh and Valarie Singh)
The Northcourt Bldg.
175 Main Street, Suite 610
White Plains, NY 10601 Edward Kesselman, Esq. (attorney for Defendant Stewart Title Ins. Co.)
11 West 42nd Street, Suite 900
New York, NY 10036
Brian R. Ca1lahan & Associates, PLLC (attorney for defendant Old Republic National Title Ins. Co.)
120 Bedford Rd.
Pleasantville, NY 10570
Brosnan & Hegler (attorney for public administrator)
1325 Franklin Avenue
Garden City, NY 11530
John B. Riordan, J.
In an action transferred to this court from Supreme Court, Nassau County, defendant Countrywide Home Loans, Inc. (Countrywide), one of several defendants, moves the court for an order granting summary judgment dismissing the complaint. Plaintiffs Abraham Robinson and Tiffany Robinson oppose Countrywide's motion and cross-move for summary judgment and alternative relief. Both sides represent that the matter is ripe for summary determination and both rely on the same documents and the affidavit and deposition testimony of Florence Toledano to support their positions. For the reasons that follow, Countrywide's motion for summary judgment is denied and the cross-motion is granted in part and denied in part. Some of the following discussion of the salient facts and procedural history is taken nearly verbatim from the court's prior decision herein (Matter of Calhoun, 20 Misc 3d 1109A [Sur Ct, Nassau County 2008]).
This action emanates from a foreclosure proceeding involving property located at
198-200 Wellesley Street, Hempstead, New York. That property was owned by Rose
Rainey who died intestate on July 13, 1986. Her brother, William Simpkins, administered her
estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not
entirely clear, that Simpkins was Rainey's sole distributee and that the subject property vested in
him immediately upon his sister's death (Matter of Roberts, 214 NY 369, 377 [1915];
Matter of Jenzura, 65 AD2d 656 [3d Dept 1978], affd 52 NY2d 1067 [1981];
Matter of Corbett, NYLJ, Feb. 13, 1996, at 34, col 3 [Sur Ct, Nassau County]). William
Simpkins then died testate on June 9, 1994. Abraham Calhoun was appointed the voluntary
administrator of Simpkins' estate. The court's file contains Simpkins' original will, which devises
and bequeaths all of his property to his cousin, Abraham Calhoun. Abraham Calhoun died
August 1, 2000. There was no deed executed from the estate of Rose Rainey to William
Simpkins, nor was there a deed from the estate of William Simpkins to Abraham Calhoun.
Although Simpkins' original will was filed in the court by Calhoun incident to the voluntary
administration of the estate of Simpkins, the will was never offered for, or admitted to, probate.
The plaintiffs Abraham Robinson and Tiffany Robinson claim to be the non-marital children of
Abraham Calhoun and his only distributees. They have received letters of administration from
this court to represent his estate.
The real estate taxes at the subject property were delinquent and one Florence Toledano purchased a tax lien from the County of Nassau. After the applicable waiting period Toledano [*2]prepared to serve the notice of redemption required to be sent pursuant to Nassau County Administrative Code § 5-51.0. A title search, which included a search of the records of this court, revealed that Rose Rainey was deceased and was survived by her brother William Simpkins as her only distributee. The search also revealed that Simpkins had also died, and that, as indicated above, he had left a will, which had not been admitted to probate, leaving his estate to Abraham Calhoun. Toledano's deposition testimony also reveals that the Nassau County Treasurer's office identified Rainey as the record owner of the property and Calhoun as the person paying the real estate taxes. The notice of redemption was sent to Calhoun at both his residence and at the address of the subject property.
Toledano was then contacted by Deborah A. Calhoun, who identified herself as Abraham Calhoun's niece. In her February 16, 2000 letter to Toledano, Deborah Calhoun indicated that Calhoun had suffered a stroke and that she, Deborah, would be acting as his guardian in an application to the Nassau County Hardship Review Board for an extension of time to redeem the tax delinquency. Her letter also indicated that Calhoun had 19-year-old twins, but she did not identify them by name nor disclose where they lived or how they could be contacted. In an affidavit submitted to this court Toledano averred that she became aware that the hardship application was granted, thus giving Calhoun and his family an additional year within which to redeem the tax lien.
After the year had passed and the lien remained unsatisfied, Toledano called Deborah Calhoun who advised Toledano that Calhoun had died before she could be appointed his Mental Hygiene Law Article 81 guardian. Toledano avers that Deborah Calhoun refused to disclose the names and addresses of Calhoun's children but would consult with her attorney and would contact Toledano if he thought disclosure was appropriate. In a letter to Toledano, Deborah indicated that she would not be involved with Calhoun's estate and concluded that it would not be in the family's best interests to pursue the redemption of the tax lien. Deborah Calhoun then referred Toledano to Deborah's attorney if Toledano had any further questions. Toledano then contacted Deborah's attorney in an attempt to find out the names and addresses of the purported children of Abraham Calhoun. According to Toledano, the attorney was surprised to hear that Calhoun had children, as he was not previously aware of that.
Toledano avers that she then searched the records of what she identifies as the NYS Department of Vital Statistics in New York City for any children of Abraham Calhoun, but that her search was unsuccessful. She also avers that she searched the records of Nassau County Hardship Review Board to see if the file there contained information regarding any children of Abraham Calhoun; it did not. Toledano then commenced a proceeding in this court for the appointment of an administrator for Abraham Calhoun's estate. Her petition names the only person Toledano knew to be a relative of Abraham Calhoun, i.e., Deborah Calhoun. Toledano's petition did not name any children of Calhoun as respondents, evidently because Toledano had no identifying information regarding them. Finally, Toledano testified that she was advised by the office of counsel to the then Public Administrator of Nassau County that her proceeding for the appointment of a fiduciary should not have been brought in the estate of Abraham Calhoun, but rather in the estate of Rose Rainey, who was identified as the owner of the property in the last deed of record recorded in the Nassau County Clerk's office. On that advice, Toledano abandoned the petition for the appointment of a fiduciary in Calhoun's estate and commenced a [*3]proceeding for the appointment of a fiduciary in the estate of Rose Rainey. Letters of administration in Rainey's estate issued to the Public Administrator of Nassau County on September 6, 2001.
In April 2002 Toledano commenced the action in Supreme Court to foreclose the tax lien naming the Public Administrator as a defendant, as well as the occupant of the premises and a third party who also was the holder of a tax lien. Neither the estate of Abraham Calhoun nor the heirs at law of Abraham Calhoun were named as defendants. A judgment of foreclosure and sale dated February 13, 2003 was entered on March 11, 2003. On November 8, 2004, the Robinsons filed a notice of claim to the surplus money following the tax lien foreclosure sale. It appears that in or about June 2006 the Robinsons commenced the action in Supreme Court for declaratory judgment that they were not bound by the February 13, 2003 judgment of foreclosure.
The underlying action by plaintiffs Abraham Robinson and Tiffany Robinson is to vacate the tax lien foreclosure sale, the deed by which the current owners of record, defendants Amar Singh and Valarie Singh, obtained title, and the mortgage placed on the property by the defendant Countrywide incident to the purchase of the property by defendants Amar Singh and Valarie Singh. Plaintiffs contend that as the fee owners of the subject property at the time the foreclosure action was commenced, they were entitled to notice of the proceeding and the failure of Toledano to provide that notice requires vacating the judgment in the foreclosure action and all subsequent deeds and mortgages.
The court's prior decision herein denied both Countrywide's motion to dismiss the action and the Robinsons' motion to strike Countrywide's answer. The court's decision also indicated that although not admitted to probate, Simpkins' will could effectively convey title to Calhoun, and identified the definitive issue to be whether the notice of foreclosure provided by Toledano was adequate in the circumstances. Specifically, this court held "[e]ven assuming that either the plaintiffs, individually, or the estate of Abraham Calhoun were, at the time of the foreclosure action, the fee owners of the property, the issue is whether the notice given by Toledano to the administrator of the estate of Rose Rainey was "reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]). The court is now satisfied that, under all the circumstances, Toledano's efforts to provide notice were insufficient and that the Robinsons are not bound by the judgment of foreclosure.
In an action by the purchaser of a tax lien to sell the property and recoup his or her costs plus any interests, penalties, etc. pursuant to Nassau County Administrative Code § 5-58.0, notice thereof is required to be served on "any person who has or may have, or any person that the plaintiff has reason to believe has or may have an interest in, or a claim upon the real property affected by such tax lien." Although at the time the foreclosure action was commenced, the records of the County Clerk indicated that the last deed of record affecting the property named Rose Rainey as the owner, the records of this court indicated that Rainey had died intestate survived by her brother William Simpkins as her only distributee. Furthermore, the records of this court reveal that Simpkins died testate, having left a will which left his entire estate to his cousin Abraham Calhoun. Finally, from Toledano's own deposition testimony and the various affidavits filed in the proceedings regarding the subject property and the estate of Abraham [*4]Calhoun, it is apparent that Toledano was advised that Calhoun had two adult children and that she believed that to be true.
Although Toledano can not be faulted as it appears that she did everything she was told to do, the fact remains that she was aware that Abraham Calhoun had children and that those children would have an interest in the outcome of the tax lien foreclosure proceeding. Although she arguably could not have ascertained their names or whereabouts despite the exercise of due diligence in that regard, she should have at least provided them with notification by publication. In Congregation Yetev Lev D'Satmar, Inc. v County of Sullivan (59 NY2d 418 [1983]), the Court of Appeals was considering the notice required in an action to foreclose on a tax lien. Quoting from the decision of the United State Supreme Court in Mullane v Central Hanover Trust Co. (339 US 306, 316 [1950]), the court held that
" [p]ersonal notice is always adequate, but it is not indispensable in all circumstances. Due process requires only that the notice be appropriate to the nature of the case without creating impossible or impractical obstacles to concluding the proceedings. A balancing process is involved, to measure the interests of the State against the individual interest sought to be protected. If notice is due, it must be such as one actually desiring to give notice would reasonably adopt to accomplish it. As to parties whose identity and address is known, notice by publication may not be sufficient. Those whose names or whereabouts are unknown and cannot be learned with due diligence or those whose interests are uncertain may be notified by publication even though it is reasonably certain that such notice will prove futile."
Countrywide has not provided any precedent by which a party's interest in real property can be affected by a tax lien foreclosure sale where the party is provided with no notice whatsoever and the court research does not reveal any. Also, based on the affidavits submitted, the court is satisfied that the Robinsons would be able to satisfy the requirements of EPTL 4-1.2 and therefore declines to exercise its discretion to vacate the letters of administration issued to the Robinsons despite Countrywide's argument that they have never been adjudicated to be the distributees of Abraham Calhoun (Matter of Menis, 137 AD2d 692 [2d Dept 1988]).
Accordingly, Countrywide's motion for summary judgment is denied. That branch of the Robinsons' cross-motion seeking summary judgment is granted. That branch of the cross-motion seeking to admit the will of William Simpkins to probate is denied as there is no petition filed for the admission of Simpkins' will to probate. That branch of the cross-motion declaring that Simpkins' will was sufficient to constitute a valid devise of the property to Abraham Calhoun is granted (Irving v Bruen, 97 NYS 180 [3d Dept 1906]). The remaining branches of the cross-motion are denied.
Settle order.
Dated: June 30, 2009
JOHN B. RIORDAN
Judge of the
Surrogate's Court
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