Opinion
2017–07443 Index 26612/09
09-25-2019
NYCTL 2008–A TRUST, et al., Appellants, v. Theresa June LIVINGSTON, et al., Defendants, Cleopatra Livingston, Respondent.
Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Josef F. Abt of counsel), for appellants.
Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Josef F. Abt of counsel), for appellants.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER In an action to foreclose a tax lien, the plaintiffs appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated June 29, 2011. The order, insofar as appealed from, denied those branches of the plaintiffs' motion which were for summary judgment on the complaint insofar as asserted against the defendants Theresa June Livingston, Helen Hollisher Livingston, and Cleopatra Livingston, and for an order of reference.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiffs' motion which were for summary judgment on the complaint insofar as asserted against the defendants Theresa June Livingston, Helen Hollisher Livingston, and Cleopatra Livingston, and for an order of reference are granted.
The Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment on the complaint insofar as asserted against the defendants Theresa June Livingston, Helen Hollisher Livingston, and Cleopatra Livingston (hereinafter collectively the defendants), and for an order of reference. The plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law by submitting the subject tax lien certificate, which was presumptive evidence of a valid and enforceable lien, along with proof that no payments had been made on the tax lien (see NYCTL 2009–A Trust v. Morris, 164 A.D.3d 1249, 82 N.Y.S.3d 530 ; NYCTL 1998–2 Trust v. 104–26 Jamaica Ave., LLC, 160 A.D.3d 974, 72 N.Y.S.3d 474 ; NYCTL 2011–A Trust v. Master Sheet Co., Inc., 150 A.D.3d 755, 54 N.Y.S.3d 422 ). The affidavits of the tax lien ombudsman (see NYCTL 2009–A Trust v. Morris, 164 A.D.3d at 1250, 82 N.Y.S.3d 530 ; Bank of N.Y. v. 125–127 Allen St. Assoc., 59 A.D.3d 220, 873 N.Y.S.2d 279 ) and the representative of the plaintiffs' servicing agent were sufficient to establish the plaintiffs' prima facie entitlement to summary judgment (see Wells Fargo Bank, N.A. v. Osias, 156 A.D.3d 942, 68 N.Y.S.3d 115 ; U.S. Bank, N.A. v. Bernabel, 125 A.D.3d 541, 5 N.Y.S.3d 372 ). In addition, the plaintiffs made a prima facie showing that they satisfied the defendants' due process rights by furnishing constitutionally adequate notice of the sale of the tax lien (see NYCTL 2009–A Trust v. Morris, 164 A.D.3d at 1251, 82 N.Y.S.3d 530 ).
In her opposition papers, the defendant Cleopatra Livingston failed to raise a triable issue of fact rebutting the plaintiffs' showing or as to the merit of her affirmative defenses (see NYCTL 2009–A Trust v. Morris, 164 A.D.3d at 1251, 82 N.Y.S.3d 530 ; NYCTL 2008–A Trust v. Trinco, Inc., 148 A.D.3d 1035, 50 N.Y.S.3d 157 ).
DILLON, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur.