IN RE: FORECLOSURE OF TAX LIENS BY PROCEEDING IN REM PURSUANT TO ARTICLE 11 OF THE REAL PROPERTY TAX LAW BY CITY OF BUFFALO. (2007)

Petitioner moved by order to show cause to set aside a tax foreclosure sale of property purchased by respondent Desmond Hughes.   Petitioner had purchased the property in 2000 and, since that time, had paid the outstanding tax obligations and sewer rents on the property.   Respondent City of Buffalo (City) foreclosed on the property, however, based on petitioner's failure to pay the commercial user fee for the years 2001-2002 and 2002-2003, which totaled $229.21.   We conclude that County Court properly granted petitioner's motion, but our reasoning differs from that of the court.   In granting petitioner's motion, the court determined that the City failed to comply with the notice provisions set forth in RPTL 1136(2)(c).  That statute applies where a property owner has interposed an answer, and it therefore does not apply to this case because petitioner did not interpose an answer.   Instead, RPAPL 231(2)(a) applies to this case, and it provides in relevant part that notice of a public sale pursuant to a judgment of foreclosure and sale must be published “either once in each week for four successive weeks or at least twice in each week for three successive weeks perceding [sic ] the original date fixed for the sale.”   Here, the City stipulated that notice of the foreclosure sale was published only once, in the Buffalo Law Journal, and we thus conclude that petitioner's motion was properly granted based on the City's failure to comply with RPAPL 231(2) (a) (see Matter of City of Buffalo [Davis-Paladino], County Ct., Erie County, Jan. 25, 2001, Drury, J., Index No. 11999/1059, affd. for reasons stated 302 A.D.2d 863, 753 N.Y.S.2d 777;  see generally Land v. County of Ulster, 84 N.Y.2d 613, 616, 620 N.Y.S.2d 769, 644 N.E.2d 1325).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: