Opinion
2017–01625 Index No. 9758/12
05-06-2020
TOWN OF HEMPSTEAD, etc., Respondent, v. AJM CAPITAL II, LLC, Appellant.
Braunstein Turkish LLP, Woodbury, N.Y. (William J. Turkish of counsel), for appellant. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Saul R. Fenchel of counsel; Michael Fufidio on the brief), for respondent.
Braunstein Turkish LLP, Woodbury, N.Y. (William J. Turkish of counsel), for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Saul R. Fenchel of counsel; Michael Fufidio on the brief), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the subject tax lien is void and unenforceable.
The plaintiff, Town of Hempstead, commenced this action, inter alia, for a judgment declaring that a certain tax lien, pertaining to "school district taxes for the year 2005–2006" and "state, county, town and special district taxes for the year 2006," is void and unenforceable. The defendant, which is the assignee of the tax lien, interposed a counterclaim seeking, inter alia, to enforce the tax lien. Subsequently, the Town moved, inter alia, for summary judgment declaring the tax lien void and unenforceable. The defendant cross-moved for summary judgment dismissing the complaint and declaring the tax lien valid and enforceable, and for summary judgment on so much of its counterclaim as sought to enforce the tax lien. The Supreme Court granted that branch of the Town's motion and denied the defendant's cross motion. The defendant appeals.
We agree with the Supreme Court's determination that the subject tax lien is void and unenforceable. Pursuant to RPTL 406(1), "(r)eal property owned by a municipal corporation within its corporate limits held for a public use shall be exempt from taxation and exempt from special ad valorem levies and special assessments." Where a municipality acquires property for a public use, a subsequent tax lien on the property will be " ‘void ab initio’ " ( Town of N. Hempstead v. County of Nassau , 162 A.D.3d 705, 708, 78 N.Y.S.3d 377 [emphasis omitted], quoting Town of Brookhaven v. Aronauer , 65 A.D.2d 570, 571, 409 N.Y.S.2d 148 ).
The Town made a prima facie showing that the subject property is put to public use, and, in opposition, the defendant failed to raise a triable issue of fact (see Matter of Citibank, N.A. v. Village of Tarrytown , 149 A.D.3d 931, 932, 52 N.Y.S.3d 398 ; Matter of 265 Penn Realty Corp. v. City of New York , 99 A.D.3d 1014, 1014–1015, 953 N.Y.S.2d 141 ). Contrary to the defendant's contention, although the property was acquired by the Town pursuant to a vesting order dated May 23, 2005, after the "taxable status" date of January 2, 2005, for tax years 2005–2006 and 2006 as set forth in the Nassau County Administrative Code (see Nassau County Administrative Code § 6–2.1[a] ), the Town was exempt from taxation on that property (see RPTL 406[1] ; see also Town of N. Hempstead v. County of Nassau , 162 A.D.3d at 708, 78 N.Y.S.3d 377 ). Furthermore, to the extent that the tax lien on the property existed prior to the date that title vested in the Town, such lien was extinguished by condemnation prior to the assignment of the lien to the defendant on September 23, 2011. Upon condemnation, the subject lien is substituted by an equitable lien against the condemnation award (see Financitech, Ltd. v. GML Syracuse LLC , 129 A.D.3d 1552, 1552, 12 N.Y.S.3d 397 ; Matter of Mill Cr. Phase 1 Staten Is. Bluebelt Sys. , 38 A.D.3d 665, 666, 831 N.Y.S.2d 532, revd on other grounds 10 N.Y.3d 898, 861 N.Y.S.2d 605, 891 N.E.2d 721 ; Matter of County of Rockland [Kohl Indus. Park Co.] , 172 A.D.2d 607, 609, 568 N.Y.S.2d 425 ).
In light of our determination, the Town's remaining contentions have been rendered academic.
Accordingly, we agree with the Supreme Court's determination granting that branch of the Town's motion which was for summary judgment declaring the tax lien void and unenforceable, and denying the defendant's cross motion for summary judgment dismissing the complaint and declaring the tax lien valid and enforceable, and for summary judgment on so much of its counterclaim as sought to enforce the tax lien.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the subject tax lien is void and unenforceable (see Lanza v. Wagner , 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 ).
MASTRO, J.P., BALKIN, BARROS and CHRISTOPHER, JJ., concur.