Matter of Foreclosure of Tax Liens By Proceeding In Rem Pursuant To Art. 11 of Real Prop. Tax Law By County of Herkimer

Matter of County of Herkimer (Jones) 2006 NY Slip Op 08532 [34 AD3d 1327] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

In the Matter of the Foreclosure of Tax Liens by Proceeding In Rem Pursuant to Article 11 of Real Property Tax Law by County of Herkimer, Respondent. Terry R. Jones, Appellant, et al., Respondent.

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Appeal from an order of the Herkimer County Court (Patrick L. Kirk, J.), entered May 19, 2005. The order denied the motion of respondent Terry R. Jones seeking, inter alia, to vacate the default judgment in this tax foreclosure proceeding.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent Terry R. Jones (Jones) failed to establish a reasonable excuse for his failure to appear in this tax foreclosure proceeding and thus County Court properly denied his motion to vacate the default judgment of foreclosure and to set aside any deeds related to the subject property (see generally NYCTL 1997-1 Trust v Vila, 19 AD3d 382 [2005]). The evidence submitted by petitioner's tax enforcement officer established that a notice of the foreclosure was sent to Jones by certified mail at his last known address, and that someone with the last name of Jones acknowledged delivery of that notice. The tax enforcement officer also stated in her affidavit that other notices of the impending foreclosure were sent to Jones by regular mail at that address, and none was returned by the post office. That evidence is sufficient to give rise to the presumption that the notice was received, and the mere denial of receipt of the notice, without more, is insufficient to rebut the presumption (see Johnson v County of Erie, 309 AD2d 1278 [2003]; 114 Aldrich v City of Buffalo, 216 AD2d 932 [1995]). The contention of Jones that he was denied due process by the procedure employed to provide notice of the impending foreclosure is without merit (see generally Matter of Harner v County of Tioga, 5 NY3d 136, 140-141 [2005]; Kennedy v Mossafa, 100 NY2d 1 [2003]). Present—Kehoe, J.P., Martoche, Smith and Pine, JJ.