Opinion
CA 03-00590
October 2, 2003.
Appeal from an order of Supreme Court, Erie County (Mahoney, J.), entered May 23, 2002, which, inter alia, denied plaintiff's motion for summary judgment and granted the cross motion of defendant County of Erie for summary judgment dismissing the complaint against it.
MICHAEL J. HUGHES, BUFFALO, FOR PLAINTIFF-APPELLANT.
FREDERICK A. WOLF, COUNTY ATTORNEY, BUFFALO (JAMES L. TUPPEN OF COUNSEL), FOR DEFENDANT-RESPONDENT COUNTY OF ERIE.
PRESENT: GREEN, J.P., PINE, WISNER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action seeking judgment vacating a judgment of foreclosure and sale and vacating the Referee's deed conveying property previously owned by plaintiff and her husband to defendant Bernard W. Davis. Supreme Court properly denied plaintiff's motion for summary judgment and granted the cross motion of defendant County of Erie (County) for summary judgment dismissing the complaint against it. The County presented proof that notice of the foreclosure was sent to plaintiff and her husband at the subject property, thus giving rise to the presumption that plaintiff received the notice ( see Law v. Benedict, 197 A.D.2d 808, 810; Best v. City of Rochester, 195 A.D.2d 1073, 1074). The denial by plaintiff that she received the notice, without more, is insufficient to rebut the presumption ( see Matter of Foreclosure of Tax Liens, 216 A.D.2d 932; Best, 195 A.D.2d at 1074). Further, under the circumstances of this case, we conclude that the notice sent jointly to plaintiff and her husband at the subject property was "`reasonably calculated, under all the circumstances, to apprise' [plaintiff] of the foreclosure action," and thus satisfied the requirements of due process ( Kennedy v. Mossafa, 100 N.Y.2d 1, 9, quoting Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314; cf. Masick v. City of Schenectady, 164 A.D.2d 488, 490-491).