Opinion
Index No. 2019/80001
07-29-2024
In the Matter of the Foreclosure of Tax Liens by Proceeding In Rem Pursuant to Article Eleven of the Real Property Tax Law by Heidi Seelbach, Dutchess County Commissioner of Finance.
Caroline E. Blackburn Dutchess County Department of Law Attorney for Plaintiff Edward J. Phillips Nicholas M. Ward-Willis KEANE & BEANE, P.C. (Attorneys for 2 premises) Attorneys for Defendants
Caroline E. Blackburn Dutchess County Department of Law Attorney for Plaintiff
Edward J. Phillips Nicholas M. Ward-Willis KEANE & BEANE, P.C. (Attorneys for 2 premises) Attorneys for Defendants
CHRISTI J. ACKER, J.
The papers filed electronically as NYSCEF Docs. 221-259 were read on this Order to Show Cause by petitioner Dutchess County Commissioner of Finance bringing on a motion pursuant to Environmental Conservation Law § 56-0508(4) to vacate the Order of this Court (Rosa, J.) dated October 7, 2019, which granted petitioner temporary incidents of ownership as to the subject parcels and stayed this matter pending completion of an environmental restoration investigation.
Upon the foregoing papers, and all prior papers and proceedings herein, the Order to Show Cause is determined as follows:
This seemingly routine in rem tax foreclosure proceeding raises two novel questions of law.
The first question inquires whether Environmental Conservation Law ("ECL") § 56-0508 - which allows taxing districts foreclosing on brownfield properties to obtain temporary incidents of ownership for the purpose of assessing the environmental risk of those properties, and to stay foreclosure pending study completion - renders invalid an environmental risk study, and bars lifting the stay, if the conduct of the study involves trespass on an adjacent parcel and/or environmental risk findings about that adjacent parcel. The answer is no. While the non-party adjacent parcel's owner might have a trespass claim against the taxing district and/or other unauthorized entrants onto that parcel, nothing in this statute or RPTL Article 11 recognizes trespass as a defense to a tax lien foreclosure, or allows, much less requires, continuation of the risk-assessment stay on that basis. To conclude otherwise would betray these statutes' plain language, and undermine their public policies to expeditiously assess the risk of municipal acquisition of brownfields in foreclosure, promote brownfield remediation and tax compliance, and return these properties to beneficial use.
The second question inquires - in light of the U.S. Supreme Court's decision in Tyler v Hennepin County (598 U.S. 631 [2023]) and New York's subsequent amendments to Real Property Tax Law ("RPTL") Article 11 (see L 2024, ch 55, pt BB) ("Part BB"), which confirmed the rights of owners of properties in tax foreclosure to claim sale proceeds in excess of the foreclosed tax liens and authorized costs - whether taxing districts must re-commence then-pending tax foreclosure proceedings or otherwise give owners notice of those surplus rights. The Court answers this question in the negative: the mere pendency of a tax foreclosure proceeding does not cause or risk a Takings Clause violation under Tyler, and there is no constitutional or statutory entitlement to particularized notice of surplus rights. Any other result would trample the common law of surplus claims, overstep the Judiciary's role in the separation of powers and sow chaos by potentially vitiating thousands of tax foreclosures pending in this State.
Accordingly, and as further explained below, the Order to Show Cause as to the taxing district's motion to vacate the ECL § 56-0508 stay of this proceeding is granted, the taxing district's temporary incidents of ownership of the subject properties are vacated, the environmental assessment stay of this proceeding is lifted, and the matter is returned to this Court's active calendar.
Background
The Dutchess County Commissioner of Finance ("County") commenced this RPTL Article 11 tax foreclosure proceeding by petition and notice of foreclosure on November 1, 2017, concerning several hundred parcels on which the County had filed liens for allegedly unpaid property taxes. As relevant here, the County alleges that Hudson Valley Management Associates, Inc. ("Hudson Valley"), owns the commercial property located at 60 Fairview Avenue in the Town of Poughkeepsie, and owes the County $153,861.25 in unpaid property taxes pursuant to a 2017 tax lien; and that Lot Six Realty Corporation ("Lot Six") owns the adjacent commercial property located at 68-70 Fairview Avenue in the Town of Poughkeepsie, and owes the County $113,007.40 in unpaid property taxes pursuant to a separate 2017 tax lien. According to the County, taxes on the two properties have lingered unpaid since 1989, accruing an aggregate tax debt exceeding $14 million.
This proceeding began under original index number 2017/2420, and was converted to electronic filing under the current index number on February 19, 2019.
The Hudson Valley and Lot Six properties jointly comprise 18 acres. These properties are contiguous with a two-acre parcel in the City of Poughkeepsie, just across the Town of Poughkeepsie's municipal boundary. Nonparty 60 Fairview Corporation ("60FC") allegedly owns this third parcel, which is not subject to this foreclosure proceeding. The three parcels together form a locally prominent brownfield site that, according to the County, has been subject to decades of polluting industrial uses including hardware manufacture, textile dyeing, gasoline and diesel storage, retail gasoline sale, waste oil disposal, automotive repair, and both legal and illegal dumping. Numerous industrial buildings located on the parcels are disused and dilapidated, though several structures are occupied by commercial tenants.
For 18 months after commencing this proceeding, the County pursued judgments as to many of its subject tax-delinquent properties and/or recorded lien satisfactions as to them. As to the Hudson Valley and Lot Six properties, the County instead filed certificates of withdrawal pursuant to RPTL 1138(1)(d), (2). The withdrawal certificates attested that, were the County to acquire these properties in foreclosure, "there is a significant risk that [the County] might be exposed to a liability substantially in excess of the amount that could be recovered by enforcing the tax lien[s]" (NYSCEF 201; see RPTL 1138[1][d]). Thereafter, the County executed certificates of reinstatement pursuant to RPTL 1138(4), alleging as to the Hudson Valley and Lot Six properties as follows:
"[S]uch parcel has been an environmental nuisance for the County and residents of the Town of Poughkeepsie and has been delinquent in the tax bill for the past 29 years. As of September 5, 2019, the total tax bill, which includes all penalties and interest that has remained unpaid on the parcel is [$7,466,770.36 as to the Hudson Valley property, and $4,113,493.52 as to the Lot Six property]. Pursuant to a Memorandum of Understanding, there is a potential buyer of the parcels who intends to purchase the parcels after the County completes the pending foreclosure action, ultimately relieving the County of this burden; however the County cannot move forward with the sale to this party until an environmental investigation is conducted to determine the full nature and extent of the existing environmental conditions at these parcels. The County of Dutchess will be proceeding pursuant to [ECL §] 56-0508 to acquire temporary incidents of ownership in order to conduct this environmental investigation allowing the County to obtain detailed information about the environmental conditions on the parcel, including, but not limited to, whether or not the soil and groundwater at the property are contaminated above applicable state and federal standards, before a judgment of foreclosure is entered"(NYSCEF 202).
Pursuant to the County's reinstatement certificates and ECL § 56-0508(1), the County re-commenced this proceeding as to the Hudson Valley and Lot Six properties via superseding petition and notice of foreclosure on September 12, 2019 (NYSCEF 203), and on that same day, moved by Order to Show Cause for temporary incidents of ownership as to those properties and to stay this proceeding as to them pending the environmental investigation. Neither respondent filed opposition. By Order dated October 7, 2019, this Court (Rosa, J.) granted the County's application and directed that the "County and any consultants or other agents working on its behalf are authorized to enter [those properties] to conduct an environmental investigation into the environmental conditions there" (NYSCEF 209) ("2019 Order").
On February 21, 2024, the County received a 1,028-page environmental investigation report prepared by nonparty Gallagher Bassett Technical Services ("Report" and "GBTS," respectively) (NYSCEF 226-240). The Report narrates that both the U.S. Environmental Protection Agency ("EPA") and New York State Department of Environmental Conservation ("NYSDEC") already recognize the combined brownfield site as a hazardous waste disposal location, on which EPA previously performed emergency remediation services under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 USC §§ 9601 et seq.) ("CERCLA"). Both NYSDEC and private environmental analysts previously found contamination by polychlorinated biphenyls ("PCBs"), cyanide, lead and various petrochemicals.
Pursuant to its own 2023 investigation, GBTS characterized its findings as "virtually identical, including results from the site inspection, interviews, and records review, and there are no substantial differences in GBTS's conclusions and recommendations." GBTS stated that "[a]ll portions of the [combined brownfield] property appear to have been used for illegal dumping" in an estimated volume of "several thousand cubic yards." According to GBTS, dumped materials include "construction and demolition materials, drums and other smaller containers, soil of unknown origin, commercial office wastes, household trash, furniture and appliances, abandoned automobiles and boats, and over a thousand tires." GBTS opined that these materials are known sources of petroleum products, lead, other potentially hazardous chemicals and asbestos. After enumerating environmental risks on each of the brownfield's three component properties, GBTS concluded that the combined site is subject to "widespread" contamination that "will require remediation," including underground oil storage tanks and above-ground drums likely to retain petroleum, "several hundred vehicle engines" on the Lot Six and 60FC properties, an open oil spill on the 60FC lot, and other contaminants whose scope GBTS could not fully determine given limited access to certain buildings.
On March 21, 2024 - one month after receiving the GBTS Report - the County proposed this Order to Show Cause bringing on a motion to vacate the 2019 Order, terminate the County's temporary incidents of ownership of the Hudson Valley and Lot Six properties, and lift this proceeding's risk-assessment stay as to them. Through joint counsel, Hudson Valley and Lot Six oppose this application.
Party Contentions
The County asserts that, by operation of ECL § 56-0508(4), the County's receipt of the GBTS Report obliged the County to bring this motion and obliges this Court to grant it. The County attests that neither of the two properties' respective tax liens has been redeemed and that neither Hudson Valley nor Lot Six interposed any affirmative defense to the underlying foreclosure petition to trigger RPTL 1123(7) severance from the Countywide proceeding.
In opposition, Hudson Valley and Lot Six challenge the County's compliance with ECL § 56-0508 and the 2019 Order, on grounds of GBTS's alleged absence of a valid agency relationship with the County and the Report's allegedly improper consideration of environmental conditions on the 60FC property.
As to GBTS's agency status, respondents assert that GBTS Report's cover page shows that GBTS prepared the Report not for the County but for nonparty Kearney Realty & Development Group ("Kearney"), which respondents allege is the County's purchaser-in-waiting for the Hudson Valley and Lot Six properties. As proof, respondents offer Resolution 2023-188 of the Dutchess County Legislature, memorializing that nonparty Fairview Avenue JV LLC ("FAJV") is the awaiting purchaser (see NYSCEF 250), and allege that Kearney created FAJV to effectuate this intended purchase - a contention the County does not dispute. They also point to the GBTS Report's narrative that its "purpose... was to enable [Kearney] to continue to comply with [EPA rules] so that it may maintain its status as a Bona Fide Prospective Purchaser... and to qualify as a 'volunteer' under the New York State Brownfield Cleanup Program" (Report, at 4). As such, respondents argue that the Report was commissioned not by and for the County but by and for Kearney, so that Kearney "might avail itself of governmental protections and tax incentive programs, if or when it acquires the [Hudson Valley and Lot Six properties] from the County following foreclosure" (Resp Mem [NYSCEF 248], at ¶ 32), and therefore runs afoul of the statutory definition of an environmental risk report. They also argue that the Report similarly violates the 2019 Order, because it authorized property access only by the County or "any consultants or other agents working on its behalf." For both of these reasons, respondents contend, the County did not undertake this environmental review in accordance with ECL Article 56, and ECL § 56-0508(3) requires this Court to continue this proceeding's risk-assessment stay until the County cures these ostensible Report defects.
As to the Report's scope, respondents point to the Report's narrative that GBTS reviewed the entire brownfield site, including 60FC's two acres, and argue that the Report does not "investigate contamination located in, on, or emanating from real property held in title by a municipality" (ECL § 56-0502[3]), but rather the 60FC property. Respondents also complain that GBTS entered the 60FC property without lawful authority, in that the 2019 Order accorded the County only temporary incidents of ownership as to the Hudson Valley and Lot Six properties, and therefore GBTS committed trespass on the 60FC property. For these separate reasons, respondents conclude that GBTS did not prepare the Report in accordance with ECL Article 56 and the 2019 Order, requiring this Court to continue the stay.
Hudson Valley and Lot Six also posit that this proceeding has become facially defective since Tyler held that a tax foreclosure in which the taxing authority retains sale proceeds in excess of the tax debt plus authorized costs violates the owner's Takings Clause rights under the U.S. Constitution. Respondents argue that Tyler and its effectuating 2024 New York statute entitle them to proper notice. Asserting that the County can cure this defect only by recommencing this proceeding, respondents conclude that the ECL § 56-0508(2) stay originally imposed for environmental reasons must continue for constitutional ones.
In reply, the County retorts that nothing in Tyler, or the 2024 statute effectuating Tyler under New York law, alters procedures to commence or prosecute a tax foreclosure proceeding in any way relevant to this proceeding, and therefore the County need not re-commence it. To the contrary, the County offers that RPTL 1123(7), pre-existing Part BB, and Tyler accords every owner of property subject to tax foreclosure an opportunity to be heard, and correspondingly severs the proceeding as to the owner's delinquent parcel, as soon as the owner mounts any affirmative defense to the underlying foreclosure petition. Under Tyler and its effectuating statute, the County argues, a tax foreclosure owner's right to claim surplus funds vests not upon the foreclosure proceeding's commencement but upon the taxing authority's execution of judgment and filing of a successor holder's deed in foreclosure - which have not yet occurred here precisely because the County stayed this proceeding under ECL § 56-0508. As such, the County concludes, this proceeding's mere pendency does not violate Tyler, so the County need not re-commence it.
As to respondents' challenges to the environmental risk investigation, the County attaches a 2019 letter agreement between the County and Kearney authorizing Kearney, as part of a joint venture, to undertake the environmental study on the County's behalf pursuant to the 2019 Order, and to retain agents to conduct the subject study (NYSCEF 258). The County contends that there is no ECL § 56-0508 defect in the County-GBTS agency relationship. In any event, the County argues that there exists no statutory mechanism authorizing an owner of tax-delinquent property subject to a tax foreclosure proceeding to challenge an environmental risk report undertaken pursuant to ECL § 56-0508. Thus, the County concludes, respondents' arguments about the Report's motive and scope, and GBTS's alleged trespass on the 60FC property, are irrelevant to this application.
The Legal Landscape of Tax Foreclosures on Brownfield Properties
Because no New York court has yet interpreted ECL § 56-0508, Tyler or Part BB, the Court begins by surveying the legal landscape that the parties' arguments implicate.
By referendum in November 1996, New York voters approved the Clean Water / Clean Air Bond Act ("Bond Act") authorizing the State to increase its indebtedness by $1.75 billion for environmental policy funding, including $200 million for certain restoration projects (see Sydney Julien & Laura Rabinow, New York's Environmental Bond Acts, State Univ. of NY, Rockefeller Inst. of Govt., Apr 18, 2022, available at https://rockinst.org/blog/new-yorks-environmental-bond-acts/ [accessed Jun 24, 2024]). In anticipation of the Bond Act's passage, the Legislature enacted a new ECL Article 56 (see L 1996, chs 412-413) ("Article 56") to become effective at ratification, appropriating the $200 million in restoration funding (see ECL § 56-0501).
In 2003, the Legislature enacted a new brownfield remediation policy that it called the Brownfield Cleanup Program ("BCP") (see L 2003, ch 1 ["2003 Amendments"]) that, among other things, revised ECL Article 56 to give Bond Act funding priority to certain brownfields designated by the State's local governments (id., pt D, § 2, adding ECL § 56-0105[5]). The 2003 Amendments defined a "brownfield" as "real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant," subject to certain exclusions not relevant here (id., pt A, § 1, adding ECL § 27-1405[2]; see Lighthouse Pointe Prop. Assocs. LLC v NY State Dept. of Environmental Conservation, 14 N.Y.3d 1 61, 165 [2010]). The 2003 Amendments also declared State brownfield policy as follows:
The Legislature later amended the statutory definition of "contaminant" in ways not relevant to this proceeding (see L 2004, ch 577, pt A, § 2).
The legislature hereby finds that there are thousands of abandoned and likely contaminated properties that threaten the health and vitality of the communities they burden, and that these sites, known as brownfields, are also contributing to sprawl development and loss of open space. It is therefore declared that, to advance the policy of the state of New York to conserve, improve, and protect its natural resources and environment and control water, land, and air pollution in order to enhance the health, safety, and welfare of the people of the state and their overall economic and social wellbeing, it is appropriate to adopt this act to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment by establishing within [NYSDEC] a statutory program to encourage cleanup and redevelopment of brownfield sites...(id., pt A, § 1, adding ECL § 27-1403). The Legislature also stated its intent that the 2003 Amendments "assure the most efficient utilization of public and private funding sources for the investigation and remediation of sites under [its] programs and... ensure remediation efforts are completed as quickly as possible" (Sponsor's Mem, Bill Jacket, L 2003, ch 1).
To these ends, the 2003 Amendments made Bond Act funding available to localities for investigating or remediating "contamination located in, on, or emanating from real property held in title by a municipality" (L 2003, ch 1, pt D, § 3, amending ECL § 56-0502[3] [investigation], [4] [remediation]), where those initiatives are "undertaken in accordance with the requirements of this title" governing brownfield policy (id.). The 2003 Amendments authorized NYSDEC to use Bond Act funds to provide localities State financial assistance up to 90% of brownfield remediation costs, and 100% for NYSDEC-approved projects extending "outside the boundaries of the real property that is subject to an environmental restoration project" on municipal property (id., pt D, § 4, amending ECL § 56-0503[1][a]-[b]). The 2003 Amendment also provided BCP incentives, including tax benefits, to brownfield owners that voluntarily undertake DEC-approved remediation projects.
To effectuate these policy priorities, the 2003 Amendments added the new ECL § 56-0508, whose terms Hudson Valley and Lot Six vigorously contest here. Focusing on brownfield properties in tax foreclosure proceedings, ECL § 56-0508 invites a taxing district foreclosing on a tax-delinquent parcel to move for "temporary incidents of ownership of such parcel for the sole purpose of entering the parcel and conducting an environmental restoration investigation project upon such parcel" (ECL § 56-0508[1]). This provision imports the 2003 Amendment's newly added definition of an "environmental restoration investigation project" as "a project, undertaken in accordance with the requirement of this [brownfield policy] title, to investigate hazardous substance located in, on, or emanating from real property held in title by a municipality" (ECL § 56-0502[3]). Unless the parcel is redeemed prior to the motion's return date, the statute requires the court to grant such application on "such terms and conditions as the court shall deem just and proper to permit the investigation to go on unhindered as well as to protect the interests of all other parties having a right, title, or interest in such parcel" (ECL § 56-0508[2]). The 2019 Order effectuated this requirement.
ECL § 56-0508 continues, in relevant part, as follows:
Such order shall act as a stay to the foreclosure action on such parcel until the environmental restoration investigation project has been completed and the final investigation report filed with the court pursuant to subdivision four of this section or such other time as the court may deem proper, and particularly upon a finding by the court that the investigation has not been carried out in an expeditious manner....
[W]ithin 30 days of the completion of the environmental restoration investigation project and the receipt by the taxing jurisdiction of the final report of such investigation, such taxing jurisdiction shall file such report with the court on notice to the court and all other parties of record, and the stay of the foreclosure shall be lifted (unless lifted earlier by a prior court order), and all incidents of temporary ownership of the taxing jurisdiction that was awarded such taxing district [except as to Bond Act funding eligibility for municipal-owned brownfields] shall cease to exist...(ECL § 56-0508[2], [4]). These procedures apply "[n]otwithstanding any general, special or local law or ordinance to the contrary" (ECL § 56-0508). Respondents assert that these procedures constitute affirmative requirements to lift an ECL § 56-0508(2) stay, and that noncompliance therefore requires a court to continue the stay until the taxing authority complies.
In 2023, the U.S. Supreme Court unanimously decided in Tyler that the Takings Clause of the Fifth Amendment - incorporated against the States via the Fourteenth Amendment (see Chicago, B. & Q. R. Co. v City of Chicago, 166 U.S. 226 [1897]; Smith v Town of Mendon, 4 N.Y.3d 1, 9 n2 [2004]) - requires a public entity foreclosing on a tax lien to provide "opportunity for the taxpayer to recover the excess value" (Tyler, 598 U.S. at 645). Tyler memorialized that a taxing authority has "the power to sell [a tax-delinquent property] to recover the unpaid property taxes [but] could not use the toehold of the tax debt to confiscate more property than was due. By doing so, it effect[s] a 'classic taking in which the government directly appropriates private property for its own use'" (id., at 639, quoting Tahoe-Sierra Preservation Council, Inc. v Tahoe Regional Planning Agency, 535 U.S. 302, 324 [2002]; see Jones v Flowers, 547 U.S. 220, 234 [2006]). Tyler confirmed, however, that no Takings Clause violation obtains where a former owner of foreclosed property fails to avail itself of established surplus procedures and thereby "forfeits [its] right to the surplus" (Tyler, 598 U.S. at 644, following Nelson v City of New York, 352 U.S. 103, 110 [1956]).
Tyler cast doubt on laws nationwide - including New York's then-existing RPTL Article 11 - that automatically allowed taxing authorities to retain surplus value after tax lien foreclosure sales (see e.g. The Supreme Court, Leading Cases, Fifth Amendment - Takings Clause - Tyler v Hennepin County, 137 Harv L Rev 310, 318-319 [2023]; Adam Liptak, States Are Not Entitled to Windfalls in Tax Disputes, Supreme Court Rules, NY Times, May 25, 2023 [online ed]). In response, the Legislature amended RPTL Article 11 to establish multiple methods to assert surplus rights under Tyler and the Takings Clause (see L 2024, ch 55, pt BB). Under Part BB, the first method was a new direct surplus procedure for tax foreclosures:
[A]ny person claiming surplus arising from a tax district's enforcement of delinquent property taxes shall have the right to file with the clerk in whose office the report of sale is filed at any time before the confirmation of the report of sale, a written notice of such claim, stating the nature and extent of their claim and the address of the claimant or the claimant's attorney(L 2024, ch 55, pt BB, § 8, adding RPTL 1135). As an alternative, Part BB invites a taxing authority acquiring a tax-delinquent property in foreclosure to devise the foreclosed property back to its former owner (or to its successor entity) on payment of back taxes, fees and other authorized charges (see id., § 11, adding RPTL 1136[4][a]). The Legislature made these RPTL Article 11 amendments retroactive to Tyler 's decision date of May 25, 2023 (see id., § 19).
Part BB also memorialized that taxing authorities could dispose of tax liens by asking the court to "make a final judgment authorizing the enforcing [the taxing authority's] officer to prepare, execute and cause to be recorded a deed conveying full and complete title to such parcel directly to a party other than the tax district, without the tax district taking title thereto" (L 2024, ch 55, pt BB, § 10, adding RPTL 1136[3][b]).
For all purposes relevant here, Part BB otherwise left unchanged RPTL Article 11 procedures to commence and prosecute tax foreclosures. These procedures include the notice that RPTL 1125(2) requires a taxing authority to send allegedly tax-delinquent property owners as part of the foreclosure commencement process.
Legal Analysis
The papers on this application implicate three statutory schemes - the 2003 Amendments including ECL Article 56 as to brownfield policy, RPTL Article 11 as to tax foreclosures generally, and Part BB as to surplus rights under Tyler. For each of them, this Court's primary consideration in statutory interpretation must be "to discern and give effect to the Legislature's intention" (Anderson v Anderson, 37 N.Y.3d 444, 452 [2021], quoting Rodriguez v City of New York, 31 N.Y.3d 312, 317 [2018]; Avella v City of New York, 29 N.Y.3d 425, 434 [2017], quoting Matter of Albany Law School v NY State Off. of Mental Retardation & Dev. Disabilities, 19 N.Y.3d 106, 120 [2012]). A statute's plain language is the "clearest indicator of legislative intent" (Regina Metropolitan Co., LLC v NY State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 335 [2020]; Lubonty v U.S. Bank, N.A., 34 N.Y.3d 250, 255 [2019]; Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 583 [1998]). Where statutory language is unambiguous, courts must construe it "to give effect to its plain meaning" (James B. Nutter & Co. v County of Saratoga, 39 N.Y.3d 350, 355 [2023], quoting Kuzmich v 50 Murray St. Acquisition LLC, 34 NY4d 84, 91 [2019], cert denied - U.S. -, 140 S.Ct. 904 [2020]; Avella, 29 N.Y.3d at 434, quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 N.Y.3d 653, 660 [2006]; see Wang v James, 40 N.Y.3d 497, 503 [2023]; People ex rel. E.S. v Supt., Livingston Corr. Facility, 40 N.Y.3d 230, 235 [2023]), "without resort to forced or unnatural interpretations" (Castro v United Container Machinery Group, Inc., 96 N.Y.2d 398, 401 [2001]; Majewski, 91 N.Y.2d at 583). At the same time, this Court must interpret these statutes "to avoid an unreasonable or absurd application of the law," and especially to avoid "inequitable and potentially absurd results" (Lubonty, 34 N.Y.3d at 255, quoting People v Garson, 6 N.Y.3d 604, 614 [2006]; People v Santi, 3 N.Y.3d 234, 244 [2004]).
In honoring these mandates, however, courts cannot selectively cherry-pick portions of statutes. Rather, courts must construe statutory text "in context and in a manner that harmonizes the related provisions and renders them compatible" (James B. Nutter & Co., 39 N.Y.3d at 355 [2023], quoting Matter of Koskider v Whitney, 34 N.Y.3d 48, 55 [2019]; Regina Metropolitan Co., 35 N.Y.3d at 335, quoting Matter of M.B., 6 N.Y.3d 437, 444 [2006] [collecting cases]). Because courts must presume that the Legislature intends "all parts of a statute... to be given effect," courts must construe statutes so that no "one part [is rendered] meaningless" (Wang, 40 N.Y.3d at 503, quoting Matter of Anonymous v Molik, 32 N.Y.3d 30, 307 [2018]; Avella, 29 N.Y.3d at 434, quoting Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 515 [1991]; see DaimlerChrysler Corp., 7 N.Y.3d at 662; Golden v Koch, 49 N.Y.2d 690, 694 [1980]).
These mandates to construe statutes in context especially apply to integrated statutory schemes such as the RPTL and ECL, which courts must construe "as a whole, with its various sections considered together and with reference to each other" to vindicate their collective purpose and harmonize their legislative commands (Tax Equity Now NY LLC v City of New York, - N.Y.3d -, 2024 NY Slip Op 01498, at *5 [2024], quoting DHC Auto v Town of Mamaroneck, 38 N.Y.3d 278, 298 [2022]; see Johnson v City of New York, 38 N.Y.3d 431, 441 [2022]; Molik, 32 N.Y.3d at 37; Matter of New York County Lawyers' Assn. v Bloomberg, 19 N.Y.3d 712, 721 [2012]). As for the RPTL, ECL and other New York consolidated statutes, so too for their amendatory chapter laws that themselves comprise integrated statutory schemes, such as the ECL's 2003 Amendments implementing the 1996 Bond Act and Part BB amending RPTL Article 11 post- Tyler. These also must be given full effect, construing their respective components harmoniously and with internal consistency to vindicate their legislative purposes.
A further interpretive canon bears on this application due to the relevant statutes' remedial purposes. Statutory "amendments are to be viewed as remedial" when they are "designed to correct imperfections in the prior law, by giving relief to an aggrieved party" (Asman v Ambach, 64 N.Y.2d 989, 991 [1985]; Mackoff v Bluemke-Mackoff, 222 A.D.3d 67, 200 N.Y.S.3d 396, 400 [2d Dept 2023]; Matter of Mia S., 212 A.D.3d 17, 22 [2d Dept 2022], lv dismissed 39 N.Y.3d 1118 [2023]). Where a statute is remedial, courts must construe it broadly to effectuate the Legislature's remedial intent (see Mackinen v City of New York, 30 N.Y.3d 81, 88 [2017], quoting Matter of Scanlan v Buffalo Pub. Sch. Sys., 90 N.Y.2d 662, 667 [1997] [broad construction of remedial statute "to spread its beneficial effects as widely as possible"]; People v Brown, 25 N.Y.2d 247, 251 [2015], quoting McKinney's Cons Laws of NY, Book 1, Statutes, § 321; Asman, 64 N.Y.2d at 990; Post v 120 E. End Ave. Corp., 62 N.Y.2d 19, 24 [1984]). Broad construction of a remedial statute vindicates the general principle that courts must construe a statute "in the light of conditions existing at the time of its passage" (People v Litto, 8 N.Y.3d 692, 697 [2007], quoting People v Koch, 250 A.D. 623, 624 [2d Dept 1937]; see Colon v Martin, 35 N.Y.3d 75, 78 [2020], quoting Riley v County of Broome, 95 N.Y.2d 455, 464 [2000]; People v Broadway R.R. Co. of Brooklyn, 126 NY 29, 37 [1891]).
The 2003 Amendments and Part BB are the quintessence of remedial legislation, correcting what the Legislature determined to be imperfections in then-existing ECL Article 56 and RPTL Article 11, respectively. By their terms, the 2003 Amendments altered environmental policy under the Bond Act to privilege remediation of brownfields, particularly those owned or subject to tax foreclosure by New York's counties and other taxing authorities. To this end, the 2003 Amendments accorded these public entities an interlocking series of funding and procedural remedies to redress community blight and environmental risks that had long resisted effective redress. Among these, ECL § 56-0508 empowered New York's taxing authorities to commission technical studies of the environmental risks potentially arising from brownfield properties subject to tax foreclosure proceedings - without either undermining collection of unpaid taxes on those properties, on the one hand, or taking on these properties' potential environmental liability, on the other (see ECL § 56-0509). The 2003 Amendments also made voluntary brownfield remediation a priority to help reduce costs and delays associated with regulation-based remediation directives.
Similarly, Part BB, enacted as part of omnibus legislation completing the State's 2024-25 budget process, all but explicitly responded to Tyler. Part BB reflects the Legislature's apparent determination that, absent a constitutionally sufficient method by which former owners of tax-foreclosed properties could claim surplus funds, the State's RPAPL Article 11 tax foreclosure system - and with it the fiscal affairs of New York's myriad taxing authorities - all could face imminent jeopardy. To redress this risk, the Legislature made Part BB retroactive to Tyler 's 2023 decision date (see L 2024, ch 55, pt BB, § 19) - potent if not conclusive proof that the Legislature intended Part BB to cure the RPTL Article 11 system's legal uncertainty under Tyler (see Matter of Mia S., 212 A.D.3d at 22, following Matter of Gleason [Michael Vee, Ltd.], 96 N.Y.2d 117, 122 [2001]; cf. People v Utsey, 7 N.Y.3d 398, 403-404 [2006]).
This apparent perception was prescient. As of this writing, dozens of cases are wending their way through the courts in multiple States, alleging that Tyler renders past tax foreclosures unconstitutional (see Charles Toutant, After Supreme Court's 'Tyler' Decision, Lawsuits Mount to Turn Back 'Equity Theft,'" Natl L J, May 13, 2024 [online ed]). Some cases also assert that Part BB does not go far enough to cure the Takings Clause infirmity that Tyler identified (see e.g. In re New York Tax Foreclosure Surplus Litig., Index No. 2024-cv-03117 [Jud Panel on Multidistrict Litig 2024]; Merckx et al. v Rensselaer County, 1:23-cv-01354 [NDNY 2024]).
Lifting the Stay
As an initial matter, this Court holds that ECL § 56-0508 does not require a taxing authority to separately move - as the County did here by Order to Show Cause - to vacate temporary incidents of possession and lift an environmental assessment stay.
The Legislature directed that a taxing authority seeking temporary incidents of possession in the first instance must "move, at a special term in the court in which the foreclosure proceeding was brought, for an order" granting them (ECL § 56-0508[1]). Upon that motion, subdivision (2) directs that "the court shall enter an order granting such relief to such taxing district" (ECL § 56-0508[2]). Subdivision (2) further directs that this order automatically "act[s] as a stay to the foreclosure action on such parcel until the environmental restoration investigation project has been completed and the final investigation report filed with the court pursuant to subdivision four of this section or such other time as the court may deem proper, and particularly upon a finding by the court that the investigation has not been carried out in an expeditious manner" (id. [emphasis added]).
Were the "until" clause of subdivision (2) ambiguous as to whether it automatically delimits an ECL § 56-0508 stay's duration or instead contemplates a subsequent procedure to lift the stay, its reference to subdivision (4) resolves that issue in favor of automatic termination. Once the taxing authority files the final investigation report, ECL § 56-0508 specifies no other motion to vacate the temporary incidents of ownership and lift the stay. To the contrary, in sharp contrast to the motion and judicial determination that subdivision (1) requires for a taxing district to obtain such relief in the first instance, subdivision (4) states simply that on the district's filing of the final investigation report "the stay... shall be lifted" - in the passive voice, without any mention of a motion or any issue of fact or law requiring judicial determination.
That a taxing authority need not specifically move to vacate an ECL § 56-0508 order and stay bears on this Order to Show Cause's resolution. Because the statute unconditionally entitles the County to this relief upon the filing of the final investigation report, the County is correct that there exists no statutory vehicle for respondents' opposition. Put another way, ECL § 56-0508 vests no substantive or procedural rights in the owner of (or any other party claiming interest) in real property subject to tax foreclosure. Thus, respondents' arguments that the stay must continue under that statute's authority - whether because of the GBTS Report's putative substantive flaws, any alleged trespass onto 60FC's property, or Kearney's ostensible interest to purchase the brownfield property - have no currency here.
In any event, these challenges lack merit on their own terms. Even to the extent that GBTS investigated environmental risks potentially arising on the 60FC property, respondents fail to show that the Report did not also concern the environmental risks potentially arising on and from the Hudson Valley and Lot Six properties. As such, respondents fail to show that the GBTS Report does not satisfy the ECL § 56-0502(3) definition of an environmental investigation report assessing "contamination located in, on, or emanating from real property held in title by a municipality" via the County's temporary incidents of ownership under ECL § 56-0508(1)-(2). To the contrary, the Report specifically memorializes that its findings about potential contamination apply to "[a]ll portions" of the brownfield, specifically including respondents' two properties, and the Report particularizes environmental risks arising on and from each of them.
Hudson Valley and Lot Six also do not show that contamination on or from the 60FC property is cabined within that property and does not risk affecting or thereby coming to constitute "contamination located in, on, or emanating from" the Hudson Valley and/or Lot Six properties. As a result, this Court cannot find, on this record, that the County had no legitimate interest in assessing environmental risk potentially arising from the 60FC property. This Court underscores that the three properties together constitute an EPA- and NYSDEC-recognized brownfield, the Hudson Valley and Lot Six properties together comprise 90% of the brownfield acreage, soil and groundwater contamination are potentially at issue, and that the 2003 Amendments specially provide up to 100% State reimbursement for brownfield remediation "outside" a designated project zone (see ECL §§ 56-0503[1][b], 56-0505[1][d]; GML § 970-r) - factual and legal reasons why consideration of an adjacent property's environmental status might be relevant to an environmental risk investigation report under ECL § 56-0508.
To be sure, none of the foregoing countenances an alleged trespass onto property. Because the 2019 Order granting temporary incidents of ownership did not extend to the 60FC property, 60FC might well have a trespass claim against the County, GBTS, Kearney and/or any joint venture that purported to authorize GBTS to enter onto the 60FC property. Respondents do not suggest much less show, however, that any such trespass claim is pending - or that it would be properly before this Court on this application. Moreover, nothing in ECL § 56-0508, the 2003 Amendments generally or RPTL Article 11 deems trespass to be a defense to a tax foreclosure proceeding, or to lifting an ECL § 56-0508 stay of one. Instead, as noted above, ECL § 56-0508(4) entitles the County to vacate the 2019 Order without any exception or qualification. Accordingly, respondents' trespass argument to continue the stay is unavailing.
Also without merit is respondents' contention that the GBTS Report does not constitute an "environmental investigation report" because, in their view, the County did not prepare the Report itself or via an agent. As discussed above, the County Legislature lawfully empowered Kearney as agent to undertake this very environmental risk study, and authorized Kearney to do so either itself or via an agent subject to certain County bonding, insurance and indemnity requirements. Further, the County is correct that ECL § 56-0508(4) accords no statutory basis for a brownfield owner to dispute vacatur of a risk-assessment stay. It follows that because GBTS's agency status vis-à-vis Kearney did not violate ECL § 56-0508 or the 2019 Order granting the County temporary incidents of ownership, the County - or, by the 2019 Order's terms, an agent of the County - could conduct the environmental risk investigation.
While respondents imply that Kearney could not be a lawful risk-assessing agent of the County under ECL § 56-0508 because Kearney or its joint venture are would-be purchasers of the Hudson Valley and Lot Six properties, respondents offer no justification for this contention. To the extent that respondents imply that Kearney might have a conflict of interest on account of its interest in the property, the 2003 Amendments themselves put any such concern to rest. ECL § 56-0508 empowers a taxing authority to determine its risk: it does not provide a vehicle to test the accuracy of the taxing authority's determination. Perhaps for that very reason, the 2003 Amendments do not bar a taxing authority from inviting a brownfield's would-be purchaser in foreclosure to conduct the environmental risk study on the taxing authority's behalf. As noted above, RPTL §1136(3)(b) empowers a taxing authority to execute a judgment of tax foreclosure by exercising a deed in foreclosure directly to a nonparty purchaser rather than by taking title itself. The 2003 Amendments, in turn, reflect a public policy for taxing authorities foreclosing on brownfields to discern environmental risks promptly whether themselves or through an agent, as the 2019 Order itself memorialized. Because the nature and extent of a brownfield property's environmental risk inherently bears on its potential disposition and any beneficial use to which remediation might return the property - public policy favors rather than disfavors a taxing district assigning risk assessment to a would-be purchaser. This approach aligns with the BCP's stated purpose to encourage brownfield holders to undertake voluntary remediation: a would-be acquirer that itself undertakes an environmental risk assessment under ECL § 56-0508 arguably would be best situated and incentivized to agree to voluntary remediation. This option also aligns with the 2003 Amendments' addition of environmental liability defenses for innocent brownfield buyers (see ECL § 27-1323[4]) - defenses modeled generally on CERCLA but still contemplating that a brownfield purchaser should know the environmental risks in advance of purchase (see Dale Desnoyers & Larry Schnapf, Environmental Remediation Process is Undergoing Sweeping Changes Mandated by New Brownfields Law, 76 NY St B J 10, 23 [Oct 2004]).
For the foregoing reasons, respondents' ECL arguments opposing the Order to Show Cause are without merit.
Tyler arguments
Turning to respondents' Tyler arguments under the Constitution, the gravamen of respondents' view is that Tyler 's articulation of surplus rights after tax foreclosure renders this proceeding fatally defective and requires the County to re-commence it. The Court disagrees.
By its terms, Tyler accords each owner of real property subject to tax foreclosure a Takings Clause right to claim surplus funds, but Tyler does not question a taxing authority's power to obtain title to tax-delinquent property by deed in foreclosure. Rather, Tyler underscored that the taxing authority in that case "had the power to sell [the tax-delinquent property] to recover the unpaid property taxes" notwithstanding the absence of any surplus procedure (Tyler, 598 U.S. at 639). Tyler itself implied why: because Takings Clause restrictions attach only once a public entity "confiscate[s]" property (id.). "As its text makes plain, the Takings Clause 'does not prohibit the taking of private property, but instead places a condition on the exercise of that power'" (Lingle v Chevron U.S.A., Inc., 544 U.S. 528, 538 [2005], quoting First English Evangelical Lutheran Ch. of Glendale v County of Los Angeles, 482 U.S. 304, 314 [1987]). The Takings Clause "is designed not to limit governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking" (First English Evangelical Lutheran Ch. of Glendale, 482 U.S. at 315 [emphasis original]).
Respondents do not allege that any taking has yet occurred - nor, in this posture, could they. After all, the Takings Clause provides a remedy to takings - whether after an involuntary government acquisition of property such as by condemnation under eminent domain; or by regulation stripping a property of "all economically viable use" (Smith, 4 N.Y.3d at 8 n4, following City of Monterey v Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 720 [1999]; Lucas v South Carolina Coastal Council, 505 U.S. 1003, 1019 [1992]); or by regulation that in context unduly "interferes with reasonable investment-backed expectations" in the presence of other considerations not at issue here (Smith, 4 N.Y.3d at 9; see Penn Cent. Transp. Co. v City of New York, 438 U.S. 104 [1978]). Each of these effectuates a public confiscation of a vested private property right, thereby triggering Takings Clause protections.
By sharp contrast, a tax foreclosure proceeding can effectuate a "taking" only upon execution of a foreclosure judgment by which the taxing authority - or, under RPTL §1136(3)(b), a nonparty directly acquiring title by judicial order - becomes seized of the property's sale proceeds or value in excess of the unredeemed tax lien plus authorized costs. Even then, under Tyler there still is no "taking" unless there exists no procedure by which the foreclosed property's former owner can claim surplus. Even in that event, the confiscation itself is not constitutionally invalid - only the government's retention of surplus. Put simply, much unlike in Tyler, here no foreclosure judgment has yet been entered, and thus there has been no taking of which respondents can complain. As such, there is no merit to respondents' suggestion that Tyler - or the Takings Clause generally - renders this proceeding defective merely because, at the time of commencement, New York had no surplus procedure for tax foreclosures that respondents could invoke in the event that this proceeding ultimately results in an entry of an adverse judgment and the County actually confiscates their properties.
Respondents' final contention - that Tyler and/or Part BB separately requires the County to re-start this action for lack of requisite notice - fails for both constitutional and statutory reasons. In Mullane v Cent. Hanover Bank & Trust Co. (339 U.S. 306 [1950]), the U.S. Supreme Court grappled with whether a New York statute satisfied due process by inviting trustees of common trusts to inform beneficiaries of trust settlement by mere publication. Mullane held that notice by publication can suffice for trust beneficiaries whose identity or location were not reasonably ascertainable. In reaching that conclusion, Mullane set forth the requirements for constitutionally sufficient notice:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice 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.... The notice must be of such nature as reasonably to convey the required information... and it must afford a reasonable time for those interested to make their appearance.... But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied. The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the [substantive] statute [giving rise to the action] deals(Mullane, 339 U.S. at 314-315 [emphasis added] [internal citations omitted]). Not any particular defense or remedy potentially extant in a proceeding, but the fact of the proceeding's pendency, is the topical hallmark of constitutionally sufficient notice.
Relying on Mullane, the U.S. Supreme Court held in Schroeder v City of New York (371 U.S. 208 [1962]) that a person or entity having interest in property imminently subject to government's eminent domain power has a constitutional due process right to notice of a condemnation proceeding affecting the property. As in Mullane, Schroeder underscored that the constitutional notice due is notice that" the matter is pending" so that the property owner "can choose... whether to appear or default, acquiesce or contest" (Schroeder, 371 U.S. at 212 [emphasis added]). Again in Mennonite Bd. of Missions v Adams (462 U.S. 791 [1983]), which addressed an adverse claimant's notice of a quiet title proceeding after tax-sale purchase, the U.S. Supreme Court narrated that constitutionally sufficient notice must be "reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection" (Mennonite, 462 U.S. at 795 [emphasis added]).
New York has adopted this due process standard and - critically here - already applied it to determine the sufficiency of notice of RTPL Article 11 proceedings. In Kennedy v Mossafa (100 N.Y.2d 1 [2003]), the Court of Appeals held that compliance with the notice requirement of RPTL 1125 - the statute governing notice "of the [in rem tax] foreclosure action" whose application respondents dispute - satisfies the requirements of Mullane and its progeny under both the U.S. Constitution and the New York Constitution (see Kennedy, 100 N.Y.2d at 9; U.S. Const, amend 5; NY Const, art I, § 6). Following Kennedy, in NYCTL 1997-1 Trust v Stell (184 A.D.3d 9 [2d Dept 2020], lv denied 35 N.Y.3d 913 [2020]), which concerned competing surplus claims after a tax foreclosure sale, the Appellate Division confirmed that surplus does not implicate or require proceedings separate from an underlying tax foreclosure.
Moreover, it is well-settled that the "Legislature is presumed to be aware of the law in existence at the time of an enactment and to have abrogated the common law only to the extent that the clear import of the language of the statute requires" (B & F Bldg. Corp. v Liebig, 76 N.Y.2d 689, 693 [1990], quoting Arbegast v Bd. of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 169 [1985]; see Brady v Vil. of Malverne, 76 A.D.3d 691, 693 [2d Dept 2010] ["The Legislature is presumed to know the law in existence at the time it enacts legislation"], lv dismissed 16 N.Y.3d 806 [2011]). "[I]n the absence of any evidence of a contrary legislative intent, provisions of a statute that are unchanged by an amendment are generally 'continued in effect with the same meaning' as prior to the amendment" (Estate of Youngjohn v Berry Plastics Corp., 36 N.Y.3d 595, 604 [2021], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 193, comment at 359). For these reasons, this Court must presume that the Legislature meant Part BB to do exactly what it did vis-à-vis Tyler and nothing more. In other words, because Part BB left RPTL §1125(2) unchanged post- Tyler, the Court can conclude the Legislature did not find it necessary to change the notice requirements contained in RPTL §1125(2).
Rather, the only notices required in and for this proceeding are the RPTL §1125(2) notice and the ECL § 56-0508 notice of the County's motion for temporary incidents of ownership. For the reasons stated above, the former was constitutionally sufficient as a matter of law, and the latter has no constitutional dimension relevant to this application. Moreover, respondents do not show that they failed to receive either of those two notices, or that the notices they received were deficient under the terms of those statutes. Accordingly, respondents' notice arguments are without merit.
Contrary to respondents' suggestion, the issue is not whether a specific post- Tyler notice of tax foreclosure respondents' rights might promote sound public policy. RPTL §1125(4) invites taxing districts voluntarily to send additional notices as it may determine, thus relegating that discretion in this proceeding to the County. If respondents believe that taxing authorities should be required rather than invited to send additional notices explicitly specifying surplus rights, then their proper recourse is to the Legislature as the policymaking branch of government.
It bears note that, in its reply, the County states that once the TIO is lifted and the stay of foreclosure vacated, it is amenable to sending additional discretionary notices to all interested parties who are entitled to notice, setting forth the redemption date 53 days following the lifting of the stay in accordance with the new 6 month redemption period. Further, upon the lifting of the stay, the County notes that all entitled parties may interpose an answer to preserve their rights, which will sever the proceeding from the foreclosure and entitle the answering party to a summary proceeding.
The County also argues that the length of the redemption period is not before the Court because the County is authorized to elect not to proceed with tax foreclosure following the lifting of the TIO.
Finally, the Court notes the mischief that respondents' re-commencement arguments would achieve were this Court to countenance them under current law. On any of respondents' Tyler theories, potentially every tax foreclosure in this State then or thereafter pending could be unsettled. The potential chaos for every taxing district in this State, and the corresponding implications for the public fisc and judicial economy, cannot be overstated. Based on the law as it now stands, this Court's duty to avoid "unreasonable or absurd application of the law," and especially "potentially absurd results" (Lubonty, 34 N.Y.3d at 255, quoting Garson, 6 N.Y.3d at 614), compels this Court to avert the sweeping implications of respondents' collateral attack on this foreclosure proceeding.
The Court has considered the parties' remaining contentions and deems them to lack merit or to be moot in light of the foregoing. Accordingly it is hereby
ORDERED that the Order to Show Cause bringing on this motion is granted; and it is further
ORDERED that the County's temporary incidents of ownership with respect to the real properties located at 60 Fairview Avenue and 68-70 Fairview Avenue in the Town of Poughkeepsie, County of Dutchess, State of New York (Tax Map No. 134689-6162-09-227572 and Tax Map No. 134689-6162-09-189635), granted by Order of this Court (Rosa, J.) dated October 7, 2019, are vacated; and it is further
ORDERED that this proceeding's ECL § 56-0508 stay as to such properties is terminated, and this matter is returned to the Court's active calendar; and it is further
ORDERED that respondents' counsel having appeared via NYSCEF, the Court's electronic filing of this instrument via NYSCEF shall constitute good and sufficient service hereof on them; and it is further
ORDERED that within five days hereof, the County shall cause this Decision and Order, with Notice of Entry, to be served via U.S. Mail on any and all other parties interested in the subject properties, and file via NYSCEF by such date a suitable affirmation of such service'; and it is further
ORDERED that a conference shall be held on this matter on October 22, 2024 at 9:30 am.
The foregoing constitutes the Decision and Order of this Court.