JAGNOW v. Hank Abma, et al., defendants-appellants. (2026)

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL article 15 to quiet title to real property, the plaintiff and the defendants Hank Abma and Robert Schuler appeal from (1) an order of the Supreme Court, Nassau County (David P. Sullivan, J.), dated March 11, 2022, (2) an order of the same court dated October 11, 2022, and (3) a judgment of the same court entered October 31, 2022.  The order dated March 11, 2022, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment declaring that the subject tax deed is null and void and granted the cross-motion of the defendant Peter Pekich for summary judgment dismissing the complaint insofar as asserted against him and, in effect, declaring that the subject tax deed is not null and void and on that defendant's counterclaim for a judgment declaring that service of the required notice to redeem was proper.  The order dated October 11, 2022, insofar as appealed from, denied that branch of the motion of the plaintiff and the defendants Hank Abma and Robert Schuler which was for leave to reargue that branch of the plaintiff's prior motion which was for summary judgment declaring that the subject tax deed is null and void and the plaintiff's opposition to the prior cross-motion of the defendant Peter Pekich for summary judgment dismissing the complaint insofar as asserted against him and, in effect, declaring that the subject tax deed is not null and void and on that defendant's counterclaim for a judgment declaring that service of the required notice to redeem was proper.  The judgment, insofar as appealed from, upon the order dated March 11, 2022, is in favor of the defendant Peter Pekich and against the plaintiff declaring that service of the required notice to redeem was proper and dismissing the complaint insofar as asserted that defendant and, in effect, declaring that the subject tax deed is not null and void.

ORDERED that the appeals from the orders dated March 11, 2022, and October 11, 2022, are dismissed;  and it is further,

ORDERED that the appeal by the defendants Hank Abma and Robert Schuler from the judgment is dismissed;  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from by the plaintiff;  and it is further,

ORDERED that one bill of costs is awarded to defendant Peter Pekich.

The appeal from so much of the order dated October 11, 2022, as denied that branch of the motion of the plaintiff and the defendants Hank Abma and Robert Schuler which was for leave to reargue that branch of the plaintiff's prior motion which was for summary judgment declaring that subject tax deed is null and void and the plaintiff's opposition to the cross-motion of the defendant Peter Pekich for summary judgment dismissing the complaint insofar as asserted against him and, in effect, declaring that the subject tax deed is not null and void and on his counterclaim for a judgment declaring that service of the required notice to redeem was proper must be dismissed, as no appeal lies from an order denying reargument (see Matter of Rosenberg v. Scwhartz, 176 AD3d 1069).  The appeals by Abma and Schuler from the order dated March 11, 2022, and the judgment must be dismissed, since they are not aggrieved by the portion of that order and the portion of the judgment appealed from (see CPLR 5511).  The appeal by the plaintiff from the order dated March 11, 2022, must be dismissed, as the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).  The issues raised on the appeal by the plaintiff from the order dated March 11, 2022, are brought up for review and have been considered on the appeal by the plaintiff from the judgment (see CPLR 5501[a][1] ).

In 2018, the defendant Peter Pekich purchased a tax lien at a public auction, and after it was not redeemed, the Nassau County Treasurer conveyed the subject property to Pekich by deed (hereinafter the tax deed).

In 2020, the plaintiff commenced this action against the defendants pursuant to RPAPL article 15 to quiet title to the subject property and for a judgment declaring that the tax deed is null and void as a result of an improperly served notice to redeem.  Pekich interposed a counterclaim for a judgment declaring that service of the required notice to redeem was proper.  Thereafter, the plaintiff moved, inter alia, for summary judgment declaring that the tax deed is null and void, and Pekich cross-moved for summary judgment dismissing the complaint insofar as asserted against him and, in effect, declaring that the tax deed is not null and void and on his counterclaim declaring that service of the required notice to redeem was proper.  In an order dated March 11, 2022, the Supreme Court, among other things, denied that branch of the plaintiff's motion and granted Pekich's cross-motion.  The court entered a judgment on October 31, 2022, upon the order dated March 11, 2022, inter alia, in favor of Pekich and against the plaintiff declaring that service of the required notice to redeem is “good and sufficient in support of the tax deed” and dismissing the complaint insofar as asserted Pekich and, in effect, declaring that the tax deed is not null and void.  The plaintiff appeals.

Pekich made a prima facie showing of his entitlement to judgment as a matter of law on his counterclaim, as he demonstrated that service of the required notice to redeem was in accordance with Nassau County Administrative Code § 5–51.0 and constitutional requirements of due process (see Matter of 154–156 Long Beach Rd., LLC v Jefferson, 243 AD3d 556, 557–558;  Allied Safe Corp v. Pekich, 172 AD3d 1144, 1145).  In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of Pekich's cross-motion for summary judgment on his counterclaim.  For the same reasons, the court properly denied that branch of the plaintiff's motion which was for summary judgment declaring that the tax deed is null and void.

The plaintiff's remaining contentions are without merit.

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.