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A TAX FORECLOSURE PROCEEDING IS AN IN REM ACTION AGAINST THE PROPERTY, NOT THE PROPERTY OWNER; THEREFORE THE ACTION WAS NOT A NULLITY DESPITE THE DEATH OF THE OWNER (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the tax foreclosure proceeding was not a nullity and did not violate due process. The foreclosed restaurant belonged to plaintiff’s husband, who died in 2006. The treasurer of Ontario County followed all the proper procedures for notification of the tax foreclosure proceedings. Tax foreclosure is an in rem action to which there are no parties. So the argument that the action could not be brought against the deceased owner of the restaurant was rejected:

… [B]y statute, mortgagors are necessary party defendants to mortgage foreclosure actions (see RPAPL 1311 [1]). In contrast, a petition in a tax foreclosure proceeding relates only to the property and not any particular person (see RPTL 1123 [2] [a]). The distinction between in rem tax foreclosure proceedings and mortgage foreclosure actions with respect to the “parties” is critical. While an action or proceeding cannot be commenced against a dead person who, by necessity, is a named party to the action … , a tax foreclosure proceeding is not commenced against any person; it is commenced against the property itself. The owners are not necessary “parties” to the tax foreclosure proceeding; they are only “[p]arties entitled to notice” of the proceeding (RPTL 1125 [1] [a]; see RPTL 1123 [1], [2] [a]; cf. RPAPL 1131). As a result, the tax foreclosure proceeding was properly commenced even though decedent had died … , and there was no need to substitute someone for the dead owner (see CPLR 1015). Hetelekides v County of Ontario, 2021 NY Slip Op 02697, Fourth Dept 4-30-21

 

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