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PLAINTIFF IN THIS TAX LIEN FORECLOSURE ACTION DID NOT DEMONSTRATE DEFENDANT WAS PROPERLY SERVED WITH THE NOTICE TO REDEEM; THEREFORE PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES FROM THE DEFENDANT (SECOND DEPT).

The Second Department determined plaintiff was not entitled to attorney’s fees in this tax lien foreclosure action because plaintiff did not demonstrate defendant was properly served with the notice to redeem:

Pursuant to Nassau County Administrative Code § 5-51.0(c), prior to the commencement of this action, the plaintiff was required to serve the defendant with a notice to redeem “by personal service, as defined in the Civil Practice Law and Rules of the State of New York” (see Nassau County Administrative Code § 5-51.0[a]). Here, the plaintiff purportedly served the defendant with the notice to redeem by “nail and mail” service (see CPLR 308[4]). However, contrary to the plaintiff’s contention, this service was ineffective, as the plaintiff failed to exercise the requisite due diligence in first attempting to serve the defendant pursuant to CPLR 308(1) or (2) … .

Where, as here, a plaintiff fails to properly serve the notice to redeem prior to commencing a foreclosure action, the plaintiff is precluded from recovering attorney’s fees from the person to whom the notice was required to be sent, provided that the person “offers to pay the penalties allowed by law at any time before final judgment is entered” (Nassau County Administrative Code § 5-51.0[f]). Here, the defendant offered to pay the penalties allowed by law in a letter … , nearly one month prior to entry of the final judgment … . DBW TL Holdco 2014, LLC v Kirk, 2021 NY Slip Op 00543, Second Dept 2-3-21

 

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