Matter of Town of Mamaroneck

[*1] Matter of Town of Mamaroneck 2016 NY Slip Op 51254(U) Decided on June 20, 2016 Supreme Court, Westchester County Everett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 20, 2016
Supreme Court, Westchester County

In the Matter of the Foreclosure of Tax Liens by Proceeding in Rem Pursuant to Article Eleven of the Real Property Tax Law, BY Town of Mamaroneck.



3219/15



William Maker, Jr., Town Attorney

Town of Mamaroneck

740 West Boston Post Road

Mamaroneck, New York 10543-3353

Mary Beth Mullins, Esq.

2001 Palmer Avenue - Suite 204

Larchmont, New York 10538
David F. Everett, J.

The following papers were read on the motions:

Town's Notice of Motion/Aff in Supp/Exhibits A1-22

Supplemental Aff in Supp/Exhibit 23

Notice of Cross Motion/Adler Aff in Opp and in Supp/Mullins Aff in Opp and in Supp/Exhibits A-M

Aff in Response to Cross Motion

Second Supplemental Aff in Supp of Town's Motion/Exhibit 24

Upon the forgoing papers, the petition is granted in part and denied in part.

In this property tax foreclosure proceeding, the Town of Mamaroneck (Town), in an effort to recoup outstanding property taxes, moves for orders, pursuant to CPLR 3212, 603 and 5012, entitling it to foreclosure on certain properties and then auction off the foreclosed properties in order to satisfy the delinquent taxes.

The following facts are taken from the parties' pleadings, motion papers, affidavits and documentary evidence and the record, and are undisputed unless otherwise indicated.

The Town commenced this action by filing a notice of petition in the Office of the Westchester County Clerk on October 5, 2015, seeking to foreclose on tax liens associated with various parcels of real property located in the Town and identified by tax lot designation and address. The accompanying petition of foreclosure provides for: a right of redemption, through the payment of the unpaid tax liens; a last day for redemption on January 29, 2016; and service of an answer, by any person having a right, title or interest in or lien upon any of the subject parcels of real property, on or before the last day for redemption. The petition further states that, in the event of a failure to redeem or answer, a judgment in foreclosure may be taken by default. As relevant here, an answer to the petition was served by respondents to the petition of foreclosure, Anthony Adler and Donna Adler, on or about January 11, 2016.

By motion filed on or about February 22, 2016, the Town now seeks orders: (1) striking the Adlers' answer and granting summary judgment as to the tax lien against the parcel designated on the Town's assessment roll as section, block and lot 9-8-404 (the parcel owned, or formerly owned, by Anthony Adler and Donna Adler), and barring and foreclosing Anthony Adler and Donna Adler and all other persons of all right, claim, lien, interest or equity of redemption in and to, or lien upon, the parcel designated on the Town's assessment roll as section, block and lot 9-8-404; (2) severing the Town's claims to foreclose the tax liens listed in Exhibit A to the petition that the Town holds on its assessment roll as:

Section-Block-LotOwner Shown on Assessment Roll

1-31-333Ram

1-32-8Ram

8-3-51.2Mauro

8-33-12Campbell

9-8-23Petruzzo

9-10-212Gaines

9-26-215Palumbo;

(Ram - Palumbo Parcels) and upon such severance; (3) with the exception of the Adlers' liens/parcel, the Ram-Palumbo liens/parcels, and any other liens/parcels which have been redeemed, directing the entry of a default judgment in favor of the Town foreclosing on the balance of the tax liens listed in Exhibit A to the petition; (3) authorizing the Town's Receiver of Taxes to convey all right, title and interest in and to the parcels listed in Exhibit A to the petition, excluding those specifically excepted, as indicated above, or redeemed, by authorizing and delivering to the Town deeds conveying all right, title and interest in and to such parcels and the related documents that will allow such deeds to be recorded by the Office of the Westchester County Clerk; and (4) decreeing that all persons claiming any right, title, interest in or to, or any lien upon the parcels whose right, title and interest the Town's Receiver of Taxes is hereby authorized to convey to the Town, be barred and foreclosed of all right, claim, lien, interest or equity or redemption in and to, or lien upon, such parcels. The Town supports its motion with a binder titled "The Town of Mamaroneck's Book of Exhibits" (Book of Exhibits) containing 22 numbered exhibits, plus the above-referenced list of 38 separate tax liens (Listed Tax Liens) [*2]attached as exhibit A. The Town, for the following reasons, is not seeking to foreclose on all 38 Listed Tax Liens.

The affirmation submitted by Town Attorney William Maker identifies putative lien holders for five of the Ram - Palumbo Parcels (that being the Mauro, Campbell, Petruzzo, Gaines and Palumbo parcels), with one particular parcel, that of John Campbell, section, block and lot 8-33-12, having five separate putative lienholders. The Town advises the Court that, despite the defaults in payment, the claims raised by these five answering respondents will require a period of discovery with respect to the authenticity and/or amount of the putative liens. Accordingly, the Town is not seeking relief with respect to the Mauro, Campbell, Petruzzo, Gaines and Palumbo parcels at this time, and seeks an order severing their liens from the instant tax foreclosure proceeding.

Next, the Town's Attorney asserts that, of the Listed Tax Liens, there are parcel owners who have successfully redeemed their properties. These are: DiBuono - section, block and lot 6-15-26; Andreoli - section, block and lot 8-13-171; Vaugt - section, block and lot 4-7-466; DelVito Contr. - section, block and lot 8-24-155.1; DelVito Contr. - section, block and lot 8-24-155.3; Presser - section, block and lot 8-29-231; 510 West Boston Post Rd.- section, block and lot 9-15-34; Mt. Pleasant - section, block and lot 9-2-250; Hanaway - section, block and lot 9-5-29.36; and Camarella Contr. - section, block and lot 9-15-22 (Book of Exhibits, exhibit 9). With respect to the two Ram parcels (section, block and lot 1-31-333 and 1-32-8), the Town advises the Court that both parcels are actually owned by an entity named Lumiram Development Corp. (Lumiram), which has not yet appeared in this proceeding. However, given that Lumiram has filed for bankruptcy protection, and an automatic stay has been imposed under 11 U.S.C. § 362 (d) (1), (2) and/or (3), the Town is not able to proceed with the foreclosure proceedings as to these two parcels and is requesting an order severing their liens from the instant property tax foreclosure proceeding.

Next, the Town Attorney affirms that "[t]he owners of the parcels that have not been redeemed (other than Mr. and Mrs. Adler and Lumiram) have defaulted. As to these parcels, except the ones that should be severed the Town seeks a default judgment" (notice of motion, aff p 4). To establish entitlement to the default judgment as to the tax liens associated with those parcels, the Town sets forth the required actions taken to comply with Title 3 of Article 11 of Real Property Tax Law (RPTL), and RPTL §§ 1124, 1124 (4), 1125 (1) (a), (b), (b) (iii), (d), and 1126.

On October 23, 2015, and prior to the date of the first publication of the notice of foreclosure, the Town caused copies of a Notice Pursuant to RPTL § 1125 to be mailed by both certified mail, return receipt requested, and by first class mail,[FN1] to the owners of the parcels listed on Exhibit A, the Listed Tax Liens (see copy of RPTL § 1125 [2] statement, Book of Exhibits, Exhibits, exhibit 11; affidavit of service, Book of Exhibits, exhibits 12, 13; RPTL § 1125 [1] [a]).

With respect to the certified and first class mailings, which were returned by the United [*3]States Postal Service (Postal Service) within 45 days after mailing, the Town requested alternative mailing addresses for the subject property owners from the Postal Service, but were only successful in reaching Presser (section, block and lot 8-29-231), through the alterative address provided by the Postal Service (see copy of request, Book of Exhibits, exhibit 14). As required under the RPTL, the mailings were completed before the date of the first publication of the notice of foreclosure.

As to the parcel owners whose mailings were returned, but for whom the Postal Service did not supply alternative addresses, the Town caused copies of the notice of petition to be posted on their parcels in compliance with RPTL § 1125 (1) (b) (iii). Pursuant to the sworn affidavit of the individual who did the posting, Julian D. Buffa (Buffa), the copies of the notice of petition were posted on December 17, 2015, and on December 21, 2015 (see Buffa Aff, Book of Exhibits, exhibit 15).

Pursuant to RPTL § 1124 (4), on December 15, 2015, Buffa, on behalf of the Town, posted a copy of the notice of petition in the lobby of the Richard J. Daronco Westchester County Courthouse (see Buffa Aff, Book of Exhibits, exhibit 16), and on December 18, 2015, Laura Jean Orsino, on behalf of the Town, posted a copy of the notice of petition in the office of the Town's Receiver of Taxes (see Book of Exhibits, exhibit 17). As required, both of these postings occurred before the date of the first publication of the notice of foreclosure (RPTL § 1124 [4]).

Next, in further compliance with RPTL § 1124, the Town caused a notice of foreclosure to be published in both The Journal News, a newspaper of general circulation in the Town of Mamaroneck, on December 23, 2015, January 6, 2016 and on January 20, 2016, and in the Mamaroneck Review, a smaller newspaper of general circulation in the Town of Mamaroneck, between December 25, 2015 and January 23, 2016 (Book of Exhibits, exhibits 18, 19).

The Town also confirms that no RPTL § 1126 Declaration of Interest has been filed by "any mortgagee, lienor, lessee or other person having a legally protected interest" in the subject parcels of real property (RPTL § 1126 [1]).

In a supplemental affirmation in support dated March 7, 2016, the Town advises the Court that two additional parcels have been redeemed, and therefore, it is withdrawing its request for a default judgment as to these parcels. Annexed to the supplemental affirmation is a supplemental book of exhibits (supp Book of Exhibits) which, at exhibit 23, identifies 603 Fenimore Rd Corp. - section, block and lot 8-24-141, and 331 Waverly Ave LLC - section, block and lot 8-24-150, as the two parcels which have been redeemed (supplemental aff; Supp Book of Exhibits, exhibit 23).

Then, by second supplemental affirmation, together with a second supplemental book of exhibits (second supp Book of Exhibits) and with a letter dated April 11, 2016, the Town advises the Court of two more parcels that have been redeemed. The Court is directed to exhibit 24, and to the sworn affidavit of the Receiver of Taxes attesting to the payment of the full amount due on the liens for the parcels identified as Petruzzo - section, block and lot 9-8-23 and Gaines - section, block and lot 9-10-212 (second supplemental aff, second supp Book of Exhibits, exhibit 24).

With the exception of the tax lien pertaining to section, block and lot 9-8-404, the parcel owned, or formerly owned, by Anthony Adler and Donna Adler, the Town's motion is granted as follows.

"Under both the federal and state constitutions, the State may not deprive a person of property without due process of law (US Const 14th Amend; NY Const, art I, § 6). It is well settled that the requirements of due process are satisfied where notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (Matter of Harner v County of Tioga, 5 NY3d 136, 140 [2005] [internal quotation marks and citations omitted]).

As applied here, the Town's documentary evidence, together with the affirmation and sworn affidavits, confirms that, as to the parcels (other than the Adler's parcel) of real property which have not, at the request of the Town, or due to the filing of bankruptcy proceedings, been severed from the instant tax lien foreclosure petition, establishes that: (1) the Town has adequately complied with the notice provisions of RPTL 1124 and 1125, and such compliance satisfies the due process rights of the parcel owners (id.); and (2) the Town is entitled to foreclose on the liens associated with such parcels of real property (other than the Adler's parcel), and to take steps necessary to satisfy the delinquent property taxes for the respective parcels. By defaulting in this proceeding, these property owners have waived their opportunity to challenge the merits of the petition. To ensure that there are no errors, The Town is directed to submit an order specifically identifying the tax liens by district, section-block-lot, name, account number, and location, which have not been redeemed, or are subject to severance, and which, for the following reasons, omits the Adler's tax lien. The order shall also include a reference for the computation of the amounts owed with respect to each tax lien being foreclosed.

As indicated above, the Adlers answered the petition of foreclosure on or about January 11, 2016 (Adlers' answer). The Adlers' answer denies the Town's allegations, and asserts four affirmative defenses: failure to state a cause of action upon which relief can be granted; the claims are barred by the doctrine of laches; full payment; and the claims are barred by the statute of limitations. By cross motion dated March 4, 2016, now seek a dismissal of the petition as against them. In a sworn affidavit, Anthony Adler explains that he and his wife Donna Adler purchased their home at 325 Prospect Avenue in Mamaroneck, designated on the Town's assessment roll as section, block and lot 9-8-404 (the Premises), on October 4, 1970.[FN2] In or about 1991, Anthony Adler incurred substantial debt, and among other things, owed real estate taxes to both the Town and the Village of Mamaroneck (Village). On or about April 25, 1991, Anthony Adler commenced a pro se Chapter 11 bankruptcy proceeding in the United States Bankruptcy Court for the Southern District of New York, identifying both the Town and Village as creditors. Adler states that, the Town opposed his plan of reorganization, principally on the grounds that it made no provision for the payment of current taxes then due, or coming due in the future, or for the payment of penalties and interest. He explains that the Town's objection to his plan was resolved by execution of an Installment Agreement specifically addressing the delinquent taxes owed to the Town for the Premises. The four-year Installment Agreement was executed on May 27, 1992, by Anthony Adler and by Thomas Altieri, in his capacity as Town Administrator. The Installment Agreement states, in relevant part:

"Anthony W. Adler acknowledges a debt to the [Town] representing delinquent taxes, in addition to the Pre-Petition Taxes covered under Plan for Reorganization now before the U.S. Bankruptcy Court as Case No. 91-B-20618 HS, for property

. . . 325 Prospect Avenue; in the amounts of: $$1,814.10 (representing 1991 School Taxes) which became part of a tax lien sold May 21, 1992 which included $452.80 penalties and $6.00 in expenses; and $2,006.86 (1992 Town Taxes) due April 30, 1992, totaling $4,279.76; with interest accruing . . .

Anthony W. Adler hereby agrees to pay $2,000.00 upon execution of this agreement, and to make installment payments in the amount of: $800.00 per month, payable on the 1st day of each month beginning June 1, 1992, to be applied toward the total debt beginning with the older tax lien, until all delinquent taxes are paid in full, plus all statutory interest and penalties.

Anthony W. Adler understands that in addition to the terms under the Plan for Reorganization and the payment terms enumerated above for payment of the lien and delinquent taxes, [he] remains responsible for payment in full of all subsequent taxes during the months they become due during the term of this Installment Agreement. (The 1992 School Taxes will become due September 1, 1992.) Failure to make additional required tax payments will be considered a default of this agreement.

It is hereby understood that interest will continue to accrue . . . The lien will remain in full force and effect until such time as the total amount due including interest is paid in full, which according to the Plan for Reorganization is scheduled for the fourth anniversary of the Plan. The [Town] will notify Anthony W. Adler of the amount of additional accrued interest when monthly payments received by the Town reach a point where the next installment payment will be in excess of or equal to the remaining delinquent tax amount representing 1992 Town Taxes. Payment of this interest amount will be made as a part of the final installment and will be due within (15) days following notification of said amount or on the regular day for monthly installment which ever is later.

It is further understood that if for any reason an installment payment is not timely made within 10 days of date it is due, additional accrued interest is not paid as provided herein, taxes which become due during the term of this Agreement are not paid when required . . . the [Town] reserves the right to initiate further legal proceedings, including foreclosure . . ." (notice of cross motion, exhibit B).

Adler asserts that he made all payments required under the terms of the Installment Agreement, and submits a copy of both his August 1, 1992 check made payable to the Town in the amount of $800.00, and his handwritten note accompanying the check (id. exhibit C). The note states:

"[e]nclosed is my check No.318 in the amount of $800.00. Pursuant to the above referenced agreement, this check when added to prior payments aggregates $4,400.00 to be applied against the $4,279.76 outstanding under the agreement. Please apply the overpayment of $120.24 to any remaining interest" (id.).

Also annexed as exhibit C, is a copy of the Town's handwritten notations on a document dated April 1, 1993,[FN3] which confirms that Adler paid: "$2000 upon execution // $800 6/1/92 // $800 7/1/92 // $800 8/1/92," that what remained "open" on that date were: "Town taxes $2006.86 // School taxes $3872.30 // anticipated lien 93 = $6590.66" (id.). These payments, Adler asserts, are not accurately reflected on the Town's ledger sheet (Book of Exhibits, exhibit 21), and present questions of reliability with respect to the Town's evidence. Adler also points out that, the only reasonable conclusion to be drawn from the notation that "open" taxes as of that date (April 1, 1993) were the 1992 Town and 1992 school taxes, and that older taxes for the years 1989, 1990, and 1991, had been paid.

Annexed as exhibit D to the cross motion is a copy of the bankruptcy court's order dated June 26, 1992, confirming Adler's plan of reorganization. The bankruptcy order states that "[a]ll scheduled creditors have been served with a copy of the debtor's Plan or a summary thereof" (notice of cross motion, exhibit D, ¶ 2), and it identifies the Town as a "Class 2" creditor, and lists the effective dates and amounts for payment to the Town of taxes due in the years 1987 through 1991 (id.). In accordance with the confirmed plan of reorganization, Adler sent, and on June 30, 1992, the Town received, the required initial payment of $1,962.02, together with his letter setting forth the bankruptcy court approved schedule of payments due to the Town (id. exhibit E).

According to Adler, he continued to make the required payments to the Town, including a payment to the Town on June 25, 1994, in the amount of $6,658.55, which, according to the Town's document printout dated "7/94," was applied toward "Lien 1994" (id. exhibits I, K). The same documents contains handwritten notations indicating that: (1) "0.00" is owed for "Lien 1992"; (2) "0.00" is owed for "Lien 1993"; (3) on "6/25," Adler paid the Town "$6,658.55"; (4) the Town sent Adler a letter on June 3, requesting interest in the amount of $133.17; and (5) "7/19 rec. ltr lien PAID." Despite this, in a letter dated July 13, 1994, the then Town Attorney, Steven M. Silverberg, advised Adler that he has an outstanding balance of $6,658.55, plus interest, for a total amount due and owing to the Town $6,791.72 ($6,658.55 + $133.17 = $6,791.72) (id. exhibit J). Adler responded with a letter advising Mr. Silverberg that the Town had already received his check, and he enclosed a copy of his cancelled check made payable to the Town in the amount of $6,658.55 (id. exhibit K). Adler's response was received by the Town on July 19, 1994 (id.).

Annexed as exhibit L to the cross motion is a copy of a printout of an accounting from his bankruptcy records for the period of April 26, 1991 through November 30, 1991, which, according to Adler, confirms his payment of $1,850.38, to the Town, which is not recorded on the Town's records (id. exhibit L).

According to Adler, his bankruptcy case remained open between 1992 and the first half of 1995, when following a hearing, the bankruptcy court issued a "Final Decree" on July 27, 1995. By that decree, the bankruptcy court closed the bankruptcy proceedings, finding that Adler's reorganization plan, as amended, had been "substantially consummated" (id. exhibit F). He insists that, since the bankruptcy proceedings, he has remained current in his property taxes to [*4]both the Town and Village, which, he points out, was also a "Class 2" creditor in the bankruptcy proceedings. On this point, Adler notes that the Village, unlike the Town, maintains records (printouts), which accurately reflect that, during the same time period (1989, 1990, 1991, 1992, and 1994), all of the taxes due and owing to the Village with respect to his parcel, were paid in full (id. exhibit G). Adler asserts that, having received no notices, demands, bill, correspondence of other forms of written communication from the Town with respect to delinquent taxes, he was surprised in August 2012, to receive notification from the Town stating that he owed $66,096.34, in property taxes for the years 1989, 1990, 1991, 1992, and 1994.

Next, Adler explains that, the attorney he engaged to resolve the issue instructed him to obtain copies of cancelled checks to the Town to prove payment. Adler submits a copy of the September 21, 2012 letter he received from his bank's (Chase) local branch manager informing him that the bank was unable to provide copies of his checks from that far back, because "all statements and account information, including statements, are retained and archived for up to 7 years and anything older than that will be destroyed" (id. exhibit H). Adler also explains that, while he no longer has records from his bankruptcy proceeding, because he destroyed them ten years after the Final Order was issued, he was able to obtain copies of his bankruptcy case filings from the National Archives and Records Administration warehouse in Missouri. He was also able to obtain copies of certain documents maintained in the Town's files (the uncertified documents referenced in footnote 3) to support his defense and cross motion.

These documents include exhibit I, the one page computer printout dated "7/94" (referenced above), evidencing the Town's receipt of his June 25, 1994-payment in the amount of $6,658.55, with notations indicating that there are no outstanding taxes for the lien years 1992 and 1993, that the entire $6,658.55, was applied to lien year 1994, and that a letter was sent to Adler requesting an interest in the amount of $133.17. With respect to Town Attorney Silverberg's letter dated July 13, 1994, demanding the immediate payment of $6,658.55 under the threat of enforcement collection, Adler points out that the letter makes no reference to any other liens or unpaid taxes. As relevant here, the letter specifically omits any reference to unpaid taxes for the years 1989, 1990, 1991, 1992 and 1994, which current Town Attorney Maker claims are outstanding, and merit foreclosure.

Based on this evidence, Adler assert that he has established his affirmative defense of payment, and that the Town's delay of some 18 plus years before demanding payment for allegedly unpaid property taxes, has caused him severe prejudice, as he cannot access copies of bank records to prove payment.

Of the four affirmative defenses, the only ones meaningfully advanced by Adler in opposition to the Town's motion and in support of his own cross motion, are that the Town fails to state a cause of action because it cannot establish nonpayment as a matter of law, and that the Town's claims are barred by laches, because their unreasonable delay has prejudiced Adler's ability to prove payment in full. The fourth affirmative defense, that of a statute of limitations bar to prosecution, appears to be abandoned, as Adler fails to identify a statutory period and/or to submit a fact-based explanation for calculating its expiration.

An examination of the evidence reveals that questions of fact precluding summary judgment exist as to the merit to the Town's claims that property taxes for the years 1989, 1990, 1992, 1992 and 1994, are outstanding. "To grant summary judgment it must clearly appear that [*5]no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The penalty of foreclosure in the event of an accounting error is severe, and the Court is not prepared issue an order, which effectively causes longtime homeowners to lose their property, when there remains any confusion or uncertainty as to whether property taxes were paid, but not accurately recorded. Accordingly, the fact that there was even one payment that was made by the Adlers, which was recorded by the Town, raises questions regarding the accuracy of the Town's records, and precludes summary judgment.

More troubling, is the lack of any explanation, supported by probative evidence or otherwise, to address the Town's inordinate delay in seeking to recover the allegedly unpaid taxes. A dismissal of claims based on the equitable doctrine of laches:

"is appropriate where the following circumstances are present: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant" (Matter of Miner v Town of Duanesburg Planning Bd., 98 AD3d 812, 813-814 [3d Dept 2012] [internal quotation marks and citations omitted], lv denied 20 NY3d 853 [2012]).

Under the circumstances presented here, the Adlers have properly pleaded and proved the affirmative defense of laches. Even though the Town, by its Receiver of Taxes, accepted, recorded and maintained a ledger of taxes for parcels of real properties located with its borders, including the Adler's parcel, for reasons left unstated, it did not alert the Adlers that there was a problem involving unpaid property taxes until August 2012, it did not commence the instant proceeding against them until October 5, 2015, and it did not serve and file the instant motion until on or about February 22, 2016. Between 18 and 22 years had elapsed between the time the taxes should have been paid, and the time the Adlers received their first notification from the Town in August 2012, that they owed $66,096.34 in property taxes for the years 1989 -1992, and 1994, when the time period for the Adlers to obtain copies of bank statements and cancelled checks to prove payment had long since lapsed. Additionally, inasmuch as the Town accepted property tax payments from the Adlers for each year subsequent to 1994, without question, protest or otherwise, the Adlers were not on notice that an 18 to 22 year property tax delinquency existed with respect to their parcel,[FN4] nor did they have any reason to expect, during that lengthy period of time, that the Town would seek to foreclose on their parcel due to such delinquency, and alert them to the need to maintain or timely obtain copies of their bank statement and checks from 1989-1995. The Adlers are as prejudiced by the Town's delayed actions, as they are by the Town's acknowledged failure to account for an $800 payment and for a $1,850.38 payment (Town aff in response, ¶¶ 5, 6, 9), by the Town's printouts, with handwritten notations, indicating that no taxes were due for the year 1992 (notice of cross motion, exhibit I), and by the Town's failure to address any delinquent taxes in its letter of July 13, 1994, demanding, under threat of [*6]enforcement action, the same $6,658.55, which it had already received and cashed (id. exhibits J, K).

In response to these issues, the Town: provides an incoherent history of the Adlers' payment history; makes a series of generalized statements as to what is owed, directing the Court to nonspecific reference points within multi-page exhibits; offers supposition, rather than fact-based statements, as to whether certain payments were used in whole or in part to reduce unpaid taxes for unspecified years; fails to explain the lapse of time between the time the Adlers failed pay their property taxes (1989, 1990, 1992, 1992 and 1994), and its notification to the Adlers in August 2012; fails to address Adler's proofs of payments made to the Town, which were not recorded in the Town's ledger, but faults Adler for his inability to demonstrate other payments made to the Town, which were not recorded in the Town's ledger or elsewhere.

Accordingly, it is

ORDERED that that aspect of the Town's motion that seeks an order striking Anthony Adler and Donna Adlers's answer and granting summary judgment against Anthony Adler and Donna Adler is denied; and it is further

ORDERED that that aspect of the Town's motion that seeks severance and dismissal of the its claims against Ram/Lumiram - section, block and lot number 1-31-333, Ram/Lumiram - section, block and lot number 1-32-8, Mauro - section, block and lot number 8-3-51.2, Campbell - section, block and lot number 8-33-12, Palumbo - section, block and lot number 9-26-215, DiBuono - section, block and lot number 6-15-26; Andreoli - section, block and lot number 8-13-171; Vaugt - section, block and lot number 4-7-466; DelVito Contr. - section, block and lot number 8-24-155.1; DelVito Contr. - section, block and lot number 8-24-155.3; Presser - section, block and lot number 8-29-231; 510 West Boston Post Rd. - section, block and lot number 9-15-34; Mt. Pleasant - section, block and lot number 9-2-250; Hanaway - section, block and lot number 9-5-29.36; Camarella Contr. - section, block and lot number 9-15-22; 603 Fenimore Rd Corp. - section, block and lot number 8-24-141; 331 Waverly Ave LLC - section, block and lot number 8-24-150; Petruzzo - section, block and lot number 9-8-23; and Gaines - section, block and lot number 9-10-212, is granted and the tax liens listed in this decretal paragraph are severed and dismissed; and it is further

ORDERED that counsel for the Town shall serve a copy of this order with notice of entry upon the County Clerk and upon the Clerk of the Court who are directed to mark the court's records to reflect the severance and dismissal of above-listed liens; and it is further

ORDERED that the matter is severed and continued against the remaining respondents; and it is further

ORDERED that that aspect of the Town's motion that seeks an order entitling it to foreclosure on, and to convey all right, title and interest in and to, certain properties not severed and dismissed from this proceeding is granted to the extent that counsel for the Town is directed to submit an order consistent with the above decision within twenty days from date of entry of this order; and it is further

ORDERED that the cross motion is granted and the proceeding for foreclosure of tax liens for the years 1989, 1990, 1991, 1992 and 1994, as against section, block and lot 9-8-404, the parcel owned, or formerly owned, by Anthony Adler and Donna Adler, is dismissed.

This constitutes the decision and order of the Court.

Dated: White Plains, New York

June 20, 2016

_______________________________

HON. DAVID F. EVERETT, A.J.S.C.

Footnotes

Footnote 1:The Town submits an additional affidavit attesting to a second mailing to parcel owners Joseph and Paulette Anson (section, block and lot 2-5-70), which was made on October 27, 2015 (Book of Exhibits, exhibit 13).

Footnote 2:As part of an estate plan, Anthony Adler and Donna Adler transferred ownership of the Premises to The Anthony W. Adler Irrevocable Trust and The Donna Adler Irrevocable Trust.

Footnote 3:Although this document, and others annexed to the Adlers' motion, are not certified or sworn, the Town acknowledges these as Town documents and does not challenge their competency.

Footnote 4:Omitted is a clarification as to when tax payments were applied by the Town to cover outstanding tax liens, to which tax lien year it was applied, and/or when, and by what means, a tax payer was notified that this had occurred.