Krumszyn v City of NY Dept. of Hous. Preserv. & Dev.

[*1] Krumszyn v City of NY Dept. of Hous. Preserv. & Dev. 2008 NY Slip Op 52029(U) [21 Misc 3d 1110(A)] Decided on March 26, 2008 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2008
Supreme Court, Bronx County

Alexandra Krumszyn, Plaintiff

against

City of New York Department of Housing Preservation and Development, Defendant



15960/2005



For Plaintiff

Frank Loverro Esq.

944 Gerard Avenue, Bronx, NY 10452

For Defendant

Paul Goetz, Assistant Corporation Counsel

100 Church Street, New York, NY 10007

Lucy Billings, J.

Plaintiff moves to vacate the judgment of foreclosure entered August 25, 2004, against her property at 2427 Hoffman Street, Bronx County, and to enjoin defendant from transferring the property while this action is pending. Defendant's sale of plaintiff's property was scheduled for May 24, 2005, when the court (Green, J.) temporarily enjoined the sale.

I.NOTICE TO PLAINTIFF REGARDING THE FORECLOSURE

Plaintiff alleges that she never received any notice of the foreclosure until she received a Post Judgment Notice dated October 20, 2004, by mail. Employees of the New York City Department of Finance and its bulk mailing service provider, on the other hand, attest that they mailed a Notice of Foreclosure to plaintiff as early as October 21, 2002. N.Y.C. Admin. Code § 11-406(c). Defendant was required only to take reasonable steps to notify plaintiff of the foreclosure action. City of New York v. United Rehabilitation Corp., 9 AD3d 266, 267 (1st Dep't 2004). Further, once four months elapsed after the judgment was entered, and plaintiff had not sought to vacate it, defendant's compliance with the statutory notice requirements is conclusively presumed, N.Y.C. Admin. Code §§ 406, 11-412.1(h); City of New York v. United Rehabilitation Corp., 9 AD3d at 267; City of New York v. Family House Real Estate Corp., 2 AD3d 241, 242 (1st Dep't 2003), and that deadline, Monday, December 27, 2004, may not be extended. C.P.L.R. § 201; NY Gen. City Law § 20(5); Press v. County of Monroe, 50 NY2d 695, 704 (1980).

II.REDEMPTION OF THE PROPERTY

Plaintiff admits, in any event, that as of May 23, 2005, she owed defendant at least $207,789.88 in taxes and interest assessed against the property. See City of New York v. United Rehabilitation Corp., 9 AD3d at 267; City of New York v. Family House Real Estate Corp., 2 AD3d at 242. She also admits violations that defendant has cited against the property and claims [*2]that she has corrected them, but that defendant refuses to reinspect the property to verify their correction and remove them from defendant's records. As a result of the outstanding violations, she could not obtain a mortgage to finance repayment of the taxes and interest and redeem the property before the four months redemption period expired December 27, 2004. N.Y.C. Admin. Code § 11-412.1(d).

Defendant refused to reinspect plaintiff's property pursuant to 28 R.C.NY § 9-06, which permits defendant to reject an application for reinspection of property to remove corrected violations from defendant's records, if there is an uncollected judgment against the property or its owner arising from litigation by defendant. Six judgments totaling $129,128.00 against plaintiff or her property, arising from litigation by defendant, remain uncollected.

Even if plaintiff is afforded four months from when she alleges she first received notice of the foreclosure in October 2004, she never redeemed her property by February 2005. After the four months redemption period, any redemption defendant might afford her is entirely an exercise of defendant's discretion, which the outstanding violations cited and judgments against her or her property provided defendant ample grounds to refuse. N.Y.C. Admin. Code § 11-424(g); Grant v. In Rem Foreclosure Release Bd., 226 AD2d 375, 376 (2d Dep't 1996). Even the discretionary redemption period extends only another 20 months, yet plaintiff did not redeem her property by October 2006. N.Y.C. Admin. Code § 11-424(a)(1).

III.NOTICE TO THE CITY COUNCIL REGARDING THE TRANSFER

Plaintiff nevertheless claims that Administrative Code § 11-412.1's four months redemption period runs only after defendant already has transferred the deed to the property. N.Y.C. Admin. Code § 11-412.1(h). Furthermore, if the Commissioner of the Department of Finance has not executed a deed conveying the property within eight months after the judgment of possession is entered, N.Y.C. Admin. Code § 11-412.1(c), defendant must discontinue the foreclosure action. N.Y.C. Admin. Code § 11-412.1(i). As of April 25, 2005, eight months after the judgment was entered August 25, 2004, defendant had not transferred the deed.

Administrative Code § 412.2, however, required the Commissioner of Finance to notify the New York City Council of the transfer before executing the deed to convey the property. That notice gives the City Council 45 days to disapprove the conveyance. During these 45 days, the eight months for the conveyance, N.Y.C. Admin. Code § 11-412.1(b) and (i), is tolled. If the City Council does not act within this period, the conveyance is considered approved.

Defendant's Assistant Commissioner attests that on March 28, 2005, she submitted a notice from the Commissioner of Finance, authenticated by the Commissioner herself, to the City Council regarding the proposed transfer, which the City Council did not disapprove by May 12, 2005. The tolling during these 45 days extended the deadline for executing the deed from April 25 to June 9, 2005. In the meantime, on May 24, 2005, Justice Green stayed the transfer.

IV.PLAINTIFF'S BANKRUPTCY PETITIONS

Finally, while this action was pending, plaintiff filed two bankruptcy petitions, 11 U.S.C. ch. 11, the first of which was dismissed, raising an issue whether the second petition automatically stayed this action or the underlying foreclosure. 11 U.S.C. § 362(c)(3). The petitions listed defendant as plaintiff's principal creditor and were filed principally to protect her interest in 2427 Hoffman Street, against which defendant claims unpaid taxes. Although defendant eventually agreed that the second petition triggered the automatic stay, the United States Bankruptcy Court, Southern District of New York, then granted defendant's motion to lift the stay, allowing defendant to proceed in this action and to complete the foreclosure and transfer of plaintiff's property.

V.CONCLUSION

All impediments to the foreclosure and transfer having been removed, and after persistent attempts to settle this action, the court perceives no potentially viable claims by plaintiff that would bar defendant from completing the foreclosure and transfer of her property at 2427 Hoffman Street, Bronx County. See N.Y.C. Admin. Code §§ 11-411, 11-412.1(a). Although plaintiff may be willing and able to pay all outstanding taxes and fines assessed against her [*3]property and to remedy all conditions on the premises that defendant maintains are unsafe and must be remedied, it now has demonstrated that it has satisfied each applicable statutory and regulatory requirement. Plaintiff, on the other hand, has not demonstrated that she satisfies any of these laws' provisions for exceptional relief from foreclosure.

Consequently, the court vacates the order temporarily enjoining the sale of 2427 Hoffman Street, Bronx County, and denies plaintiff's motion to vacate the judgment of foreclosure entered August 24, 2004, against that property and for further injunctive relief. C.P.L.R. §§ 5015(a), 6301. Since defendant has not moved to dismiss this action, and no party has moved for summary judgment, however, the action remains pending. This decision constitutes the court's order.

DATED: March 26, 2008

_____________________________

Lucy Billings, J.S.C.