IN RE: the Foreclosure of Tax Liens by COUNTY OF OTSEGO.

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Foreclosure of Tax Liens by COUNTY OF OTSEGO. COUNTY OF OTSEGO, Respondent; ROBERT FORCE et al., Appellants.


Decided: May 07, 2015

Before:  McCarthy, J.P., Egan Jr., Devine and Clark, JJ. Konstanty Law Office, Oneonta (James E. Konstanty of counsel), for appellants. Ellen Coccoma, Cooperstown, for respondent.


Calendar Date:  March 23, 2015

Appeal from an order of the County Court of Otsego County (Burns, J.), entered August 19, 2014, which, in a proceeding pursuant to RPTL article 11, among other things, denied respondents' motion to vacate a default judgment entered against them.

Respondents are the owners of three parcels of real property located in Otsego County, one of which has been improved with a residence.   In January 2013, petitioner commenced the instant proceeding seeking foreclosure on the three parcels for nonpayment of real property taxes relative to the year 2011.   Upon petitioner's motion, on June 14, 2013, County Court granted petitioner a default judgment and ordered foreclosure of respondents' parcels.   In April 2014, respondents were notified that a public auction would occur on August 20, 2014.   Thereafter, in early August 2014, respondents sought a stay of the upcoming tax sale and an order opening and vacating the June 2013 default judgment, arguing, among other things, that they were unaware that petitioner had initiated the instant proceeding until April 2014, when they received a notice of the impending auction.   County Court denied respondents' motion, and respondents now appeal.

We affirm.   Pursuant to RPTL 1131, any motion to reopen a default judgment in a tax foreclosure proceeding must be brought within one month of the entry of judgment.   Inasmuch as the record before us demonstrates that respondents were properly served with notice of the commencement of this proceeding in January 2013 by both certified mail and ordinary first class mail as required by statute (see RPTL 1125[1][b][i] ), we find no support for the contention that the one-month period did not begin to run on June 14, 2013, thereby giving respondents until July 14, 2013 to move for vacatur pursuant to RPTL 1131.   Thus, County Court properly denied respondents' motion, filed August 5, 2014, as untimely (see e.g. Matter of County of Clinton [Greenpoint Assets, Ltd.], 116 AD3d 1206, 1207–1208 [2014];  Matter of County of Clinton [Bouchard], 29 AD3d 79, 81–82 [2006] ).

McCarthy, J.P., Egan Jr. and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.


Robert D. Mayberger

Clerk of the Court

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