Opposition Brief — Weigner v. City of New York

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(9) FILED

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No. 88-607 - ‘a ee

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IN THE hermes

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

JOSEPHINE WEIGNER,

Plaintiff-Petitioner,

-against-

THE CITY OF NEW YORK,

Defendant-Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETER L. ZIMROTH,

Corporation Counsel,

Attorney for Respondent,

100 Church Street,

New York, New York 10007.

(212) 566-8306 or 4338

LEONARD J. KOERNER,*

PAMELA SEIDER DOLGOW,

of Counsel.

*Counsel of Record.

December 12, 1988

COUNTER-STATEMENT OF THE

QUESTION PRESENTED

Whether the City’s practice of notifying

property owners of the pendency of a tax

lien foreclosure proceeding involving their

property by ordinary first-class mail, in

addition to notice by publication and

posting, is violative of due process?

TABLE OF CONTENTS

COUNTER-STATEMENT OF

THE QUESTION PRESENTED ......

TABLE OF AUTHORITIES _......

COUNTER-STATEMENT OF

yy | oe) \ | Serre

OPINIONS BELOW___..........--

REASONS FOR DENYING

THE WRIT

THE CITY'S PRACTICE OF

NOTIFYING PROPERTY

OWNERS OF THE PENDENCY

OF A TAX LIEN

FORECLOSURE PROCEEDING

INVOLVING THEIR PROPERTY

BY ORDINARY FIRST-CLASS

MAIL, IN ADDITION TO

NOTICE BY PUBLICATION

AND POSTING, FULLY

COMPORTS WITH DUE

PROCESS. THE COURT OF

APPEALS' DECISION SO

HOLDING FOLLOWED

APPLICABLE DECISIONS OF

THIS COURT AND IS NOT IN

CONFLICT WITH THE

HOLDINGS OF ANY OTHER

sy eee

ee Rs | ee

ii

Page

12

TABLE OF AUTHORITIES

Cases:

Blinn v. Nelson,

222 U.S. 1 (1911)

Gardner v. City of

Columbus, Ohio, 841

F2d 1272 (6th Cir.,

1988)

Greene v. Lindsey,

456 U.S. 444 (1982)

Marcus vy. Ambach,

136 A.D.2d 778 (3rd

Dept. 1988)

McCann v. Scaduto,

71 N.Y.2d 164,

524 N.Y.S.2d 398,

519 N.E.2d 308 (1987)

Mennonite Board of

Missions v. Adams,

462 U.S. 791 (1983) ..

Mullane v. Central

Hanover Bank & Trust

Co., 339 U.S. 306

(1950)

oeeoeeveeeeeeeevee

ili

Page

28

27

26

Schroeder v. City of

New York, 371 U.S. 208

SEE Cob enéeadéncsesceseecatusee 23, 24,

The Goodyear Tire &

Rubber Co. v. Ruby,

312 Md. 413, 540 A.2d

GE ERED | cw hdueaescsaccescceseces 25

Texaco, Inc. v. Short,

GOG U.B. SES CROGS) cccccccccscee 31, 33

Tulsa Professional

Collection Services,

Inc. v. Pope, ____ U.S.

__, 108 S. Ct. 1340

FOE oekbawedeue esdcnn ee seeendue 15, 22,

24-25,

34, 35

Wakefield v. Northern

Telecom, Inc., 813 F.2d

See Gee Ges BOD “scacdsscvcese’ 33

Constitution:

U.S. Const.,

Fourteenth Amendment...>......... 23

iv

Statutes:

Fed. R. Civ. P.

re 18

RI rc rcg fe a 18

McKinney's Civil Practice

Law and Rules

Pe Sl) sigaunnekevunasweaes 24

Pere rte re Terre yr ere 24

New York City Administrative

Code (Lenz & riechert 1986)

Title 11, Chapter 4

Pe OST et Tere 30

SE oe ae 3, 4

OS eee 30

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SOO & WW “1 WH 1-1

No. 88-607

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

JOSEPHINE WEIGNER,

Plaintiff- Petitioner,

-against-

THE CITY OF NEW YORK,

Defendant-Respondent.

RESPONDENTS' BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

COUNTER-STATEMENT OF THE CASE

(1)

Plaintiff-petitioner ("petitioner") com-

menced the instant action against the City of

New York alleging constitutional violations

and other improprieties in connection with

the City's tax foreclosure action against her

property in Jamaica, Queens, New York, and

the City's subsequent denial of petitioner's

application for release of the City's interest

in the property. The United States District

Court, Eastern District of New York

(Bramwell, J.), granted summary judgment

in favor of the City and dismissed the

action. The United States Court of Appeals

for the Second Circuit, with one Judge

dissenting, affirmed. The Court held, inter

alia, that notices of commencement of tax

foreclosure actions sent by first-class mail

pursuant to New York City's Administrative

Code satisfied a property owner's right to

due process.

(2)

In 1962, petitioner acquired 14 vacant

"parcels of land in South Jamaica, Queens,

New York. Beginning in 1977, petitioner

failed to pay taxes on the _ subject

properties. On October 1, 1981, the City

commenced an in rem tax foreclosure action

against all real property in Queens on which

real estate taxes had not been paid for a

year or more. Petitioner's 14 tax delinquent

parcels were among the 5,229 properties

included in this action.

The New York City Administrative

Code, title 11, chapter 4 (formerly chapter

17, title D), sets forth the procedures that

the City follows in foreclosing on_ real

property by reason of tax delinquency.

Real property owners who wish to receive

real estate tax bills, or to designate someone

else to receive them, may file an "owner's

registration card." Admin. Code, §11-416(a)

(Lenz & Riecher 1986). In so doing, they

automatically arrange for the _ tax bill

recipient to be informed of the commencement

of an_ action of foreclosure for tax

delinquency. Admin. Code, §§11-406(c) and

416(c). Other persons having an interest in

property, who wish to be informed of the

commencement of an in rem foreclosure action

on the property, including owners who have

designated others to receive the tax bills,

may file an "in rem card." Admin. Code,

§11-417(a). The filing of the in rem card,

like the owner's registration card, ensures a

mailing of notice to the requested address in

the event the property is included in an in

rem tax foreclosure action. Admin. Code,

§11-406(c) and 417(b). The mailed notice is

in addition to the notice by publication and

posting mandated by Administrative Code,

§11-406(a) and (d).

On October 11, 1981, pursuant to

applicable provisions of the Administrative

Code, notices of the commencement of the

tax foreclosure action were sent to petitioner

at her home in Florida by ordinary first-

class mail.” The "Notice of Foreclosure"

the notices were sent with respect to 13 of

(Footnote Continued)

sent to petitioner apprised "[a]ll persons

having or claiming to have an interest in the

real property" that was the subject of In

Rem Tax Foreclosure Action No. 38, Borough

of Queens, that an action tic foreclose tax

liens had been commenced against’ the

parcels. The Notice advised that a list of

the unpaid taxes was available for inspection

in the office of the Commissioner of Finance,

for which two telephone numbers were given,

and that a final date of December 18, 1981

had been established for the redemption of

(Footnote Continued)

the 14 parcels owned by petitioner.

Petitioner was not mailed notice as to the

14th parcel because she failed to file an

owner's registration card or in rem card with

respect to that lot as she had for the other

13 parcels. However, the 14th parcel is a

narrow strip of land of apparently less

interest to petitioner and she acknowledged

on appeal in the United States Court of

Appeals for the Second Circuit that whatever

ruling is made with respect to the 13 parcels

for which notice was mailed should govern

the 14th parcel (A-3, ftnt 1).

property. See Admin. Code, §11-407(a).”

An accompanying form apprised petitioner

that she was the "presumptive owner or

lienor of one or mere of the _ parcels

mentioned" in the Notice of Foreclosure and

listed the block and lot numbers of the

property. The Notice of Foreclosure also

specified that, if one failed to redeem the

property or to answer the complaint he

would be "forever barred and foreclosed" of

any right or interest in the property "except

for the remedies provided in Sections

D17-7.0(c) and 0D17-25.0 [now _ sections

11-407(c) and 11-424] of the Administrative

Code." Petitioner failed at that time either

to redeem her properties or to answer the

complaints.

2The in rem proceeding is discontinued as to

any parcel redeemed pursuant to

Administrative Code, §11-407(a). See

Admin. Code, §11-407(b).

Section 11-407(c) [formerly

§D17-7.0(c)] of the Administrative Code,

provides for the late redemption of property

after the redemption date has passed, but

prior to entry of a judgment of foreclosure.

Property which is redeemed pursuant to said

section is then withdrawn ffrom __ the

foreclosure action. Admin. Code, §11-413.

In Rem Tax Foreclosure Action No. 38,

Borough of Queens, was pending from late

1981 until March 1984. Petitioner did not

seek to avail herself of the late redemption

provision during that time. On March 6,

1984, a judgment of foreclosure was entered

in Supreme Court, Queens County, and the

City acquired title to all parcels listed

therein, including petitioner's 14 parcels,

pursuant to deed duly recorded on March

15, 1984.

Section 11-424 of the Administrative

Code provides for the release of the City's

interest in property following a judgment of

tax foreclosure by the City. An application

for release must be made within two years

from the date on which the City's deed was

recorded. Admin. Code, §11-424(a). Under

the provisions of section 11-424(f), a release

application made within four months of the

City's acquisition of the property "shall be

granted", provided that the Corporation

Counsel approves the application as_ to

"form, timeliness and eligibility of the

applicant" and further provided that the

applicant pays all required amounts within 30

days of a request for payment. Since the

City's judgment of tax foreclosure in this

case was not entered until 1984, and its

deed was recorded on March 15, 1984,

petitioner had until July 15, 1984 to seek the

mandatory release of her property. Admin.

Code, §11-424(f). She failed to do so.

Section 11-424(g) of the Administrative

Code provides that an application for release

made after the four-month period, but within

two years of the City's acquisition of the

property, may be granted by the Board of

Estimate, but that such release by the Board

is discretionary. That gave petitioner until

March 15, 1986 to apply for discretionary

release.

On March 12, 1986, just three days

short of the two-year discretionary release

deadline, petitioner filed release applications

with respect to each of her 14 parcels.

During the review process, petitioner was

informed that her case for a discretionary

release was weak and she was encouraged to

submit additional evidence in support of her

application .° Petitioner thereafter submitted

3prior to action by the Board of Estimate,

(Footnote Continued)

an affidavit stating that she "held the

property for investment" and that "it became

financially inexpedient for [her] to continue

to pay the real estate taxes" because the

value of the property had _ dropped.

Petitioner's affidavit did not mention any

future plans for the property.

(Footnote Ccntinued)

release applications are reviewed by the

Division of Real Property ("DRP") of the

New York City Department of General

Services which makes recommendations to the

Acquisitions and Dispositions Committee ("A

& D Committee"). The A & D Committee is a

committee of the Board of Estimate, which,

in turn, makes recommendations to the full

Board of Estimate on real property matters.

Some of the factors upon which the Board of

Estimate bases its discretionary determination

include: any possible City plans for

property disposition, the reasons why the

property became tax delinquent, whether the

applicant has lost other properties for

nonpayment of taxes, whether the release

application is made toward the beginning or

the end of the discretionary period, whether

the applicant occupies the property or is an

absentee owner and any future plans the

applicant may have for the property.

10

On September 25, 1986, the Board of

Estimate considered the matter. Petitioner,

by her attorney, was given an opportunity

to address the Board and present her

arguments in favor of release. A DRP

representative summarized the arguments

against release including the fact that the

sites were being considered as_ potential

Affordable Housing Sites. Based on the

facts before it, and after hearing from

plaintiff and the DRP representative, the

Board of Estimate voted unanimously to deny

the release of the properties.”

4puring its review, DRP learned that the

subject properties were part of an

assemblage within a "Housing Study" area on

disposition hold by the Department of City

Planning and that the _ sites had been

submitted to the Mayor's Office as potential

Affordable Housing Sites, deemed suitable

for development because of their size, zone

and extent of City ownership.

* worksheets submitted to the Board of

(Footnote Continued)

11

(3)

Petitioner commenced the instant action

on October 22, 1986. Her complaint alleged,

inter alia, that she received inadequate

notice of the foreclosure proceeding and that

by denying her release applications, the

Board of Estimate discriminated against her

as an out-of-state resident and otherwise

abused its discretion.

(Footnote Continued)

Estimate indicated that the taxes owed on the

properties then totaled more than $30,000,

that the estimated value of the properties

was $183,000, that the property was not

owner occupied, that petitioner had bought

the property for investment purposes and

had abandoned it, that the application was

received two years after the judgment of

foreclosure, that petitioner had no specific

plans for the property and that the property

was being considered as a_. possible

Affordable Housing Site.

12

OPINIONS BELOW

District Court Opinion

668 F. Supp. 135 (1987)

The District Court granted summary

judgment to the City and dismissed the

complaint. The Court found that the City's

notice provisions fully comported with due

process because petitioner actually received

notices of foreclosure and “"[a]ctual notice of

commencement of the proceeding is all due

process required."® The Court held that

6 although petitioner denied that she ever

received legal papers or notices by certified

mail, she admitted receiving “tax bills and

other form letters" concerning overdue taxes

on her Queens property. The District

Court's finding that notices were received

was limited to the 13 parcels as to which

notices had been sent. See footnote 1,

p. 4, supra. As to the 14th parcel, for

which notice was not sent, because petitioner

had not filed an owner's registration card or

in rem card with respect to that parcel, the

District Court held that petitioner's claim

was barred by the two-year statute of

limitations contained in Administrative Code,

§11-412(c). a

13

due process did not require that petitioner

be given further notice of the recording of

the deed or of her right to seek release.

In rejecting petitioner's equal protection

claim, the District Court’ stated that

petitioner had presented "not a scintilla of

evidence" to support her allegation of

discrimination due to her Florida residency.

Additionally, the Court concluded that the

Board of Estimate had acted "rationally and

well within its discretion" in denying

petitioner's release applications.

Second Circuit Opinion

852 F.2d 646 (1988)

(1)

In affirming the judgment of the Court |

below, the Court of Appeals for the Second

Circuit, one judge dissenting, held that |

"notice sent by ordinary mail of the

pendency of the tax lien foreclosure

proceeding is all that the _ constitution

requires", expressly rejecting petitioner's

14

OO EO

claim that, at a minimum, due _ process

requires notice by certified mail, return

receipt requested, to property owners who

risk tax lien foreclosure of their interests in

real_ estate. In so holding, the Court

followed the long line of cases that have

held, in a wide variety of proceedings that

threaten to deprive individuals of their

property interests, that notice sent by

ordinary mail satisfies the requirements of

due process. Tulsa Professional Collection

Services, Inc. v. Pope, _U.S.__, 108 S.Ct.

1340 (1988); Mennonite Board of Missions v.

Adams, 462 U.S. 791, 800 (1983); Mullane v.

Central Hanover Bank & Trust Co., 339

U.S. 306, 319 (1950).

Also expressly rejected was petitioner's

contention that, in order to satisfy due

process, notice of a tax lien foreclosure must

not only be mailed to a property owner but

also must be received. The Court held that

15

"[p]Jarticularly where mailing is supplemented

by other forms of notice such as posting or

publication, the risk of non-receipt is

constitutionally acceptable." The Court

noted that, in this case, in addition to

mailing, the City also both published and

posted foreclosure notices. Another reason

for tolerating the small risk of non-receipt of

first-class mail in this case was petitioner's

own conduct in failing to pay taxes. The

Court reasoned that the "well-known

inevitability of taxes and the consequences

of not paying them are themselves likely to

alert a tax delinquent_property owner to the

possibility of foreclosure."

Lastly, the Court rejected petitioner's

contention that the notice provided by the

Administrative Code was_ constitutionally

inadequate because she was never informed

of entry of the foreclosure judgment or of

the imminent lapse of her remedies of

16

mandatory and discretionary release. The

Court stated that "due process only requires

notice of 'the pendency of the action’ and an

opportunity to respond." The Court held

that "the likelihood of the City preventing

against Weigner's property was so certain

from the circumstances of her _ tax

delinquency that additional written notices of

deadlines to avoid foreclosure was

unnecessary."

The Court found petitioner's other

claims to be equally without merit. !

(2)

Judge Oakes dissented. Recognizing

that his dissenting opinion "may be a little

"Because it found that due process was

satisfied with respect to the 13 parcels for

which notices were sent, and_ because

petitioner agreed that the disposition with

regard to the 13 parcels should govern the

14th parcel, the Court declined to consider ~

the statute of limitations issue.

17

in advance of its time", and also recognizing

that this Court has never held that certified

or registered mail, as opposed to ordinary

first-class mail, is required to constitute

actual notice, the dissent nevertheless held

that

"in light of both the evolving due

process standards for adequacy of

notice and the practical realities of

being a postal patron in the late

1980s, I would take the further

step of requiring that actual notice

consist of personal service,

registered or certified mail, or, at

a minimum, of service by first

class mail with a return envelope,

postage prepaid and addressed to

the sender, as specified in Fed.

R. Civ. P. 4(c)(2)(c)ii 84(d).

The dissent also found the

Administrative Code "release" provisions,

which place the approval of satis

applications (i.e., those filed outside the

four-month mandatory release period) wholly

within the discretion of the Board of

Trustees, to be "totally arbitrary."

18

REASONS FOR DENYING THE WRIT

THE CITY'S PRACTICE OF NOTIFYING

PROPERTY OWNERS OF THE PENDENCY OF

A TAX LIEN FORECLOSURE PROCEEDING

INVOLVING THEIR PROPERTY BY

ORDINARY FIRST-CLASS MAIL, IN

ADDITION TO NOTICE BY PUBLICATION

AND POSTING, FULLY COMPORTS WITH

DUE PROCESS. THE COURT OF APPEALS'

DECISION SO HOLDING FOLLOWED

APPLICABLE DECISIONS OF THIS COURT

AND IS NOT IN CONFLICT WITH THE

HOLDINGS OF ANY OTHER CIRCUIT.

(1)

In attacking the constitutionality of the

notice provisions contained in New York

City's in rem _ tax foreclosure statute,

petitioner argues that due process requires

more than notice by ordinary mail of the

commencement of 4 tax foreclosure

proceeding involving her property. She

contends that where the property owner's

mame and address is known, notice by

certified mail, with return receipt requested,

is constitutionally required. Pet. at 25-26.

The Court of Appeals soundly rejected

this proposition after a painstaking analysis

19

of the City's in rem notice provisions in

light of applicable precedents of this Court.

Because the Court's decision is wholly

consistent with those precedents and because

petitioner has failed to establish any special

or important reason for the exercise of this

Court's jurisdiction, the petition should be

denied. Rule 17.

(2)

In Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 314 (1950), this

Court recognized that before action is taken

which will affect a person's interest in

property, due process requires “notice

reasonably calculated, under all the

circumstances, to apprise interested parties

of the pendency of the action and afford

them an opportunity to present. their

objections." The proper inquiry is whether

the state acted reasonably in selecting means

likely to inform persons affected, not

whether each property owner actually

received notice. As long as the state

employs means "such as one desirous of

actually informing the [property owner]

might reasonably adopt to accomplish [that

purpose]," then it has discharged its

burden. Id. at 315.

In Mullane, notice by publication of an

action to settle the accounts of a common

trust was held insufficient to inform the

beneficiaries of the trust, whose names and

addresses were known, of the pending

action. This Court held that "[w]here the

names and post-office addresses of those

affected by a proceeding are at hand, the

reasons disappear for resort to means less

likely than the mails to apprise them of its

pendency." Id. at 318. In so holding, this

Court took the opportunity to note that

mailing was an "efficient and inexpensive

means of communication” (id. at 319) and

21

thus there was no tenable ground for

dispensing with a serious effort to inform

the income beneficiaries of the accounting "at

least by ordinary mail to the record

addresses (emphasis added)." Id. at 319.

In subsequent cases, this Court has

adhered unwaveringly to the _ principle

announced in Mullane. Thus, in the context

of a wide variety of proceedings. that

threaten to deprive individuals of their

property interests, this Court has

consistently held that mailed notice satisfies

the requirements of due process. See, e.g.

Tulsa Professional Collection Services, Inc.

v. Pope, U.S. __, 108 Sup. Ct. 1340

(1988) (notice to creditors in probate

proceedings); Mennonite Board of Missions

v. Adams, 462 U.S. 791, 799-800 (1983)

(notice to mortgagee of tax foreclosure);

Greene v. Lindsey, 456 U.S. 444, 455 (1982)

(notice to public housing tenants of forcible

22

entry and detainees actions); Schroeder v.

City of New York, 371 U.S. 208, 214 (1962)

(notice of condemnation proceeding).

In Mennonite Bd. of Missions v. Adams,

supra, 462 U.S. 791, this Court specifically

applied Mullane's balancing test to real

property tax sale proceedings. In

Mennonite, this Court struck down the notice

provisions of an Indiana in rem _ tax

foreclosure statute because it failed to

provide notice, other than _ notice by

publication and posting, to a mortgagee with

a recorded interest in the property. The

Court held that, under the Due Process

Clause of the Fourteenth Amendment (462

U.S. at 800):

[n]Jotice by mail or other means as

certain to ensure actual notice is a

minimum constitutional precondition

to a proceeding which will

adversely affect the liberty or

property interests of any party,

whether unlettered or well-versed

in commercial practice, if its name

and address are reasonably

ascertainable (emphasis omitted).

23

Thus, the county was constitutionally obliged

to notify a mortgagee of a pending tax sale

affecting its interest in the property, an

obligation which this Court held "'the mailing

of a single letter would have discharged.’ "

Id., quoting Schroeder v. New York City,

371 U.S. at 214.

Petitioner has not shown that notice by

ordinary first-class mail is not “reasonably

calculated" to afford notice.® Indeed this

Court, in Mennonite, referred only to the

need for "notice by mail." Id. at 462. See

also, Tulsa Professional Collection Services

v. Pope, supra, U.S. __, 108 S. Ct. at

1340 ("We have repeatedly recognized that

_ urisdict.on in the underlying tax

foreclosure action was in rem, obtained by

virtue of the subject properties’ presence

within the state. Service of a summons on

property owners was, therefore,

unnecessa-y. See Civil Practice Law and

Rules, §304, Practice Commentary C304:1;

and §301. (McKinney 1978 and Supp. 1988).

24

mail service is an inexpensive and efficient

mechanism that is reasonably calculated to

provide actual notice"); Greene v. Lindsay,

supra, 456 U.S. at 455 ("notice by mail may

reasonably be relied upon _ to _ provide

interested persons with actual notice of

judicial proceedings"); Mullane, supra, 339

U.S. at 319 (mails are recognized as

“efficient and inexpensive means of

communication", this Court expressly

sanctioning notice by ordinary’ mail);

Gardner v. City of Columbus, Ohio, 841

F.2d 1272, 1279 (6th Cir. 1988) (notice to

parking violators by affixing ticket to car

windshield in conjunction with ordinary mail

notice advising the owner of the infraction

and implications of failure to answer does not

violate due process); The Goodyear Tire &

Rubber Co. v. Ruby, 312 Md. 413, 540 A.2d

482, (1988) (service by first-class mail

adequate to apprise former husband of

25

ex-wife's proceedings seeking earnings lien

for enforcement of child support).

Petitioner has not cited a single case where

a court required that notice be sent by

certified mail. 9

9McCann vy. Scaduto, 71 N.Y.2d 164, 524

N.Y.S.2d 398, 519 N.E.2d 309 (1987), does

not impose a constitutional requirement of

certified mailing. In McCann, the Court of

Appeals held that Nassau County's. tax

foreclosure procedures violated due process.

In contrast to the City's notice provisions,

Nassau County's Administrative Code

provided for notice to property owners of a

tax lien sale by publication only. After the

sale, the purchaser of the tax lien was

required to inform the property owner of his

redemption rights by certified mail, return

receipt requested. The Court of Appeals

held that this statutory scheme was violative

of due process because the initial tax sale

was a substantial deprivation of property

that required mailed or "actual" notice as

opposed to published or "constructive" notice

to property owners whose addresses were

known. Id., 71 N.Y.2d at 177, 524

N.Y.S.2d at 403-04, 519 N.E.2d at 313-15

(citing Mennonite Board of Missions v.

Adams, supra). It is clear that "actual"

notice means notice sent to the recipient, as

opposed to published notice. Id. 71 N.Y.2d

at 174, 524 N.Y.S.2d at 402. Nowhere does

(Footnote Continued)

26

While notice by certified mail, return

receipt requested, may have certain

advantages, means of notice beyond those

reasonably calculated to reach interested

parties are not required by due process.

Mullane, supra, 339 U.S. at 313-14,

317-18. 1°

Nor does due process require actual

receipt of notice that is properly mailed.

" "Now and then an extraordinary case may

turn up, but constitutional law like other

mortal contrivances has to take some

(Footnote Continued)

the opinion suggest that “actual” notice

means notice that is in fact delivered, much

less notice by certified mail, return receipt

requested.

106¢ course, a possible disadvantage of

certified mail, return receipt requested, is

that one who is intent on avoiding notice can

refuse to sign for it, or can be unavailable

when delivery is attempted and then fail to

claim it at the post-office. See, e.£g.,

Marcus v. Ambach, 136 AD2d 778, (3rd

Dept. 1988).

chances, and in the great majority of

instances no doubt justice will be done' ".

Mullane, supra, 339 U.S. at 319, quoting

Blinn v. Nelson, 222 U.S. 1, 7 (1911). See

371 U.S. at 214 (City's duty to notify

property owner of condemnation proceeding

was "an obligation which the mailing of a

single letter would have discharged"

(emphasis added).

Where mailing is supplemented by other

forms of notice such as_ publication and

posting, as in this case, the small risk of

non-receipt is even further reduced.

(3)

Under the applicable precedents

discussed above, petitioner received all the

process she was due. City records reveal

that on October 1, 1981, notices of tax lien

foreclosure were sent to petitioner at her

Florida address by ordinary first-class mail.

28

In addition, notice was’ effectuated by

publication and posting pursuant to

applicable Administrative Code provisions.

The fact that petitioner now denies that

she received the notices is irrelevant in

assessing the constitutional validity of the

City's in rem _ notice provisions. !! As

properly noted by the Court of Appeals in

this case, the small risk that the notice sent

by first-class mail would not arrive is

acceptable for two reasons. First, the

Hy, the District Court, while denying that

she received "proper notice", petitioner

conceded that she received "some tax bills

and other form ietters from the City of New

York." The notices of foreclosure, it is to

be noted, were accompanied by form letters.

It is significant that the notices were sent to

petitioner's home address that she _ herself

provided on owner registration cards filed

with the Commissioner of Finance and the

notices were never returned undelivered.

On oral argument in the Court of Appeals,

petitioner contended for the first time that

she never received the notices of

foreclosure.

29

oe

mailing was not the sole means relied upon to

give notice. The City published foreclosure

notices once a week for six successive weeks

in the City Record and in two newspapers

circulated throughout Queens County.

Admin. Code §11-406(a). Additionally,

foreclosure notices were posted in the

Queens County courthouse and in three

other conspicuous locations in the Borough

of Queens. Admin. Code §11-406(d).

Second, the well-known inevitability of taxes

and the consequences of not paying them are

themselves likely to alert a tax delinquent

property owner’ to. the _ possibility of

foreclosure. At the time of _ the

commencement of the tax foreclosure

proceeding in this case, petitioner had failed

to pay property taxes for over four years

and concedes receiving tax bills and other

letters from the City apprising her of her

delinquency. A person in _ petitioner's

30

position can reasonably be expected to know

that foreclosure is imminent and to take the

steps necessary to protect her interests.

See Texaco v. Short, 454 U.S. 516, 532

(1982) ("persons owning property within a

State are charged with knowledge of relevant

statutory provisions affecting the control or

disposition of such property."). Under

these circumstances, notice by ordinary mail

supplemented by publication and posting was

reasonably calculated to inform the parties

affected.

Nor were petitioner's due process rights

violated because she was never notified of

entry of the foreclosure judgment or, later,

of the imminent lapse of her remedies of

mandatory or discretionary release. Due

process —only requires. notice of "the

pendency of the action" and an opportunity

to respond. Mullane, supra, 339 U.S. at

314; Mennonite Board of Missions v. Adams,

31

12

supra, 462 U.S. at 795; see Greene Vv.

Lindsey, supra, 456 U.S. at 451.

Here, the City discharged its obligation

by sending notice that was_ reasonably

calculated to inform affected parties that the

foreclosure action had been initiated and

apprise them of the availability of the

13 The

redemption and release remedies.

City was not thereafter required to send

additional notices as each step in the

foreclosure proceeding was completed or

when the release periods were about to

12this Court in Mennonite, in light of the

disposition reached in that case, declined to

consider the issue of whether a mortgagee is

constitutionally entitled to notice of its right

to redeem the property. 462 U.S. at 800,

footnote 6.

13 indeed, petitioner availed herself of the

right to seek release by filing an application

within the two-year discretionary release

period pursuant to sections 11-407 and

11-424 of the Administrative Code.

However, as noted, her application was

denied by the Board of Estimate.

lapse. Cf. Texaco, Inc. v. Short, 454 U.S.

516, 536 (1982) (given presumed knowledge

that their unused mineral interests would

lapse unless they filed a statement of ciaim,

ounene of such interests had = ino

constitutional right to be advised that the

20-year period of nonuse was about to

expire).

By the time the mandatory release

period lapsed in July 1984, petitioner had

failed to pay taxes on her property for over

seven years; by the time the discretionary

release period lapsed in March 1986, she had

been tax delinquent for almost ten years.

Under these circumstances, the likelihood of

the City proceeding against petitioner's

property was so certain that additional

written notice of deadlines to avoid

foreclosure was unnecessary. See Wakefield

v. Northern Telecom, Inc., 813 F.2d 535,

542-42 (2d Cir. 1987) (failure of court clerk

33

to mail notice to litigants of the filing of an

order in the district court does not relieve a

party from complying with deadlines running

from the filing of such an order because a

party to litigation ought to anticipate the

filing of such orders).

Petitioner's reliance on Tulsa Collection

Service v. Pope, supra, 108 S.Ct. 1340, is

wholly misplaced. Tulsa holds only that due

process required actual mail notice to

reasonably ascertainable creditors of an

estate in probate that the two-month

nonclaim statute, which was not

self-executing, had began to run. Here,

petitioner was given actual mail notice of the

pendency of the tax foreclosure proceeding

involving her property and, at that time,

was advised of her redemption and release

rights. Due process does not require that

she be given additional notice that the time

period for seeking mandatory release was

34

about to lapse. Tulsa does not require such

additional notice.

(4) a,

For all the foregoing reasons, the Court

of Appeals, following applicable precedents

in this Court, properly held in this case

that notice to petitioner by first-class mail of

the pendency of a tax foreclosure proceeding

involving her property, in addition to notice

by publication and posting, fully comported

with due process. Petitioner's constitutional

claim is insubstantial and the petition should

be denied.

35

CONCLUSION

THE PETITION FOR A WRIT

OF CERTIORARI SHCULD BE

DENIED.

December 12, 1988

PETER L. ZIMROTH,

Corporation Counsel of

the City of New York,

Attorney for Respondents,

100 Church Street,

New York, NY 10007.

(212) 566-8306 or 4338

;

}

:

)

a

/

LEONARD J. KOERNER, *

PAMELA SEIDER DOLGOW,

of Counsel.

*Counsel of Record

36