Opinion
2012-12-13
In the Matter of Mary SMERECKI, on Behalf of Janina SMERECKI, Appellant, v. Kevin P. KEOUGH, as Director of Broome County Real Property Tax Service, Respondent.
Elizabeth V. Marchionni, Binghamton, for appellant. Robert G. Behnke, County Attorney, Binghamton, for respondent.
Elizabeth V. Marchionni, Binghamton, for appellant. Robert G. Behnke, County Attorney, Binghamton, for respondent.
Before: MERCURE, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.
MERCURE, J.P.
Appeal from a judgment of the Supreme Court (Lebous, J.), entered April 3, 2012 in Broome County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's request for a hardship sell-back of certain real property.
Petitioner is the daughter and attorney-in-fact of Janina Smerecki, the former owner of real property located in the Town of Sanford, Broome County. In November 2010, respondent commenced an RPTL article 11, in rem proceeding to foreclose delinquent tax liens on the property. Neither Smerecki nor petitioner filed an answer; rather, in September 2011, petitioner requested a “hardship sell-back” of the property based upon her mother's deteriorating physical and mental condition. Respondent denied the request, and Broome County acquired title to the property via an October 2011 judgment ( seeRPTL 1123[8]; 1136[3] ). Petitioner appealed respondent's denial of her sell-back request to the Finance Committee of the Broome County Legislature, which affirmed, prompting this proceeding. Supreme Court, finding no “evidence of fraud or illegality,” and also finding a “rational[ ] basis” for respondent's determination, dismissed the petition. Upon petitioner's appeal, we now affirm.
Inasmuch as it is undisputed that the tax lien was valid and respondent followed all proper procedures in foreclosing the lien, “any property interests held by [Smerecki] were lawfully extinguished as of the expiration of the [ ] right to redemption and the entry of the judgment of foreclosure” ( Matter of Orange County Commr. of Fin. [Helseth], 18 N.Y.3d 634, 640, 942 N.Y.S.2d 442, 965 N.E.2d 944 [2012] ). That is, the County had no legal obligation to sell the property back once the valid judgment of foreclosure awarded it title ( see Quick v. County of Broome, 302 A.D.2d 788, 789, 754 N.Y.S.2d 918 [2003];Key Bank of Cent. N.Y. v. County of Broome, 116 A.D.2d 90, 92, 500 N.Y.S.2d 434 [1986] ). Nevertheless, petitioner challenges the denial of her hardship sell-back request as arbitrary and capricious, and without a rational basis.
Petitioner argues at length that certain cases decided by the Appellate Division, First Department apply a heightened standard of “fraud or illegality” in interpreting a similar statute and should not be followed due to distinctions in the statutory schemes at issue; a review of those cases indicates that the Court employed the rationality standard set forth in CPLR 7803(3)—“whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” ( see Matter of Upper E. Side Community Dev. Corp. v. City of N.Y. Div. of Real Prop., 176 A.D.2d 649, 650, 575 N.Y.S.2d 302 [1991];Solomon v. City of N.Y., Dept. of Gen. Servs., Div. of Real Prop., 94 A.D.2d 283, 286–287, 464 N.Y.S.2d 160 [1983];see also Matter of Sixteen Eighty W. 7th Corp. v. Board of Estimate of City of N.Y., 109 A.D.2d 799, 800, 486 N.Y.S.2d 311 [1985] ).
Pursuant to Broome County Charter and Administrative Code § 222–13, “the Finance Committee of the Broome County Legislature or [its] designee shall have, in its sole discretion, ... the right to remove any parcel or parcels of land from sales lists or from auction, where, in the judgment of said Committee, an unusual or unique situation or hardship case is presented which would require further consideration.” Such a release is in the nature of “a courtesy extended to the previous landowner, but its mere availability should not be equated with the establishment or guarantee of a property right” ( Matter of Orange County Commr. of Fin. [Helseth], 18 N.Y.3d at 640, 942 N.Y.S.2d 442, 965 N.E.2d 944) or “a routine right of the petitioner” ( Matter of Dwyer v. Lindsay, 23 N.Y.2d 562, 565, 297 N.Y.S.2d 942, 245 N.E.2d 708 [1969] ). While petitioner detailed her mother's declining health and deteriorating mental condition after suffering heart attacks and a stroke, respondent provided a factually-supported, rational basis for his determination that a sell-back was not justified. Specifically, as Supreme Court noted, respondent indicated that, although petitioner was aware that Smerecki's health issues had resulted in her failure to pay taxes on various properties and petitioner had entered into an installment agreement with Delaware County, she did not attempt to resolve the tax lien in Broome County until six months after the deadline to redeem the property had passed. Moreover, respondent noted that the property at issue was not Smerecki's primary residence. Under these circumstances, it cannot be said that respondent's determination constituted an abuse of discretion or was irrational. SPAIN, STEIN, McCARTHY and GARRY, JJ., concur.
ORDERED that the judgment is affirmed, without costs.