# Opposition Brief — Weigner v. City of New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1005

## Text

Be 2 Court, C3, :
(9) FILED

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No. 88-607 - ‘a ee
} dre 2 "RL dk
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
GRRPEIUERD —gotccccccrccsscs
GEEPONNEA kh kc cccccvavcces 6,
Se * Goer rp enn 6,
OORENERE ik chsncncsedes 1
ESS es eee eee
BS ly econ ey Fc
eS nee eee
IE ose 4 et
RE tf co

Re ta ce 6,
cee e ne
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NE ee en eae

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0257%3A2. Public record. Not legal advice.