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At a special term of the County

Delaware County Clerk
Document Number 83751 Côurt of the. State of New York,
12/14120099:04:03AM held In and for the County of
Delaware at DeIhl. New York on
ImllllllmmlllnllWill1 November 5, 2009
County Court of the State of New York
County of Delc)ware

In the Matter of the Foreolosure of Tax

Liens for the Years 1999-2"ÖOO, 2000-2001, oeCISION & ORDER
2001-2cio2~' 2003,-2004, 2004-2005. 2005-2006 Index No. 2008..1690
2006';2007 by prooeeding in rem pUrSUÇlht to RJI No. 2009.0378
Article Eleven of the Real Propert Tax
Law by the Village of FleIschmanns

This matter comes before the court on a petitoh seeking foreclosure of

propert known a.s tax parcel #2.87.17 ~2-11 and looated at 932 Main Street, in
Fleischmanns, New York by the Vilage of Flelsohmanns, ("\lJage") which p,etltlon was
originally filed on December 11, 2008with the Delaware Couhty Clerk and an. amended
petition was flied on January 8, 2009. An appllcatiòn for a default judgment was filed
.on Se.ptember 25, 2009 and on Ootober 6, 2009 an order to show cause. was flied by
Brian E. Dowd seeking to vacate a judgment of foreclosure 1 'and allowing the taxpayers
and owners to pay ~nd directing the Vilage accept all Vilage taxes noW due along wlth
co~t~, dlsburs.ements and attorney's fees In redemption of the subjeotpropert.

_ The Vflagè of Flelshrnann.s filed an affdavit in opposition on October 15,

2009, and counsel for Brian Dowd filed a reply affrmation dated October 17, 2009.

On October 19, 2009, all partes. appeared before the court, Including
counsel for tne Delaware Natlonaf Bank of pel hi f'elank"). The Bank, which holds a
mortgage on the propert~ 8.rgued that the V/Jage told them that the taes had been
paid 'Otherwise the Bank would have paid the taxes. The Vilage argued that the
tre.asurer gave the Bank theoot'ect information (that the taxes had not been pàid) and
failed to pay the taxes. The court denied the motion brought by Brian
the Bank. simply

stayed. entry of judgment of foreclosLwe for fifeen days to allow the Bank to
. Dowd and

make a motion.

Subsequently, the Bank möved by orderto show cause on October 29,

1The reco.rd does not Indicate thi;t a Judgment of forelosure was entered.

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2009 to vacate the judgment of foreclosure and extend the redemption period to allow
redemption of the subject propert. Counsel for the Vilage filed affrmations in
opposition on November 4. 2009. The mattr was heard on November 5. 2009 and the
partiessubmjtted memoranda of law and closing statements thereafter.

In summary. Bank's position Is that they stand ready to bring the unpaid
taxes due to prevent foreolosure. The Vilagè argues that it has the absolute nght to
foreclose on the propert once the redemption period has pässed.

The New York State Constitution In Artlole 6, Section 11 provides that the
county court shall exercise such eaulty jurisdiction as may be provided by Jaw.
Judiciary Law §190-b provides that a county court wit jurisdiction of ~n action or
special proceeding, possesses the same jurisdiction power and authority over the same
that supreme court possesses in a like case and may render any Judgment or grant any
relief that supreme coUrt may render ina like case. Supreme Court's equity Jurisdiction
is set forth in NY Canst. Art. Vlt §7(a). .

The court findst pursuant to Its equit powers, that it would work an undue
hardship on.the bank and derivatively on its customer to pérmit foreolosure under these
circumstnoes. The court's equity jurisdicton derives from the City of Buffalo v.
Kísslnger, eL ai, 40 NYS2d 188 (County Court, erie County, New York 1943).
Therefore, the judgment of foreclosure Is VEloate and the Village of
Fleischmanns is ordered toac.ptp.ayment of past due Vilage taxes In the amount of
$19,250.82 by either the Bank or the propert owners. Payment shaU'bß made within
five days of the entty of this order.

The Vniagè is entited to recover their costs of foreclosure and the Vilage
is dlrecteq to submit an affdavit of expenses and an affdavit of serviaes from the
Vllage attorney as to legal fées for pàymeht byth.e part redeeming this propert. It Is
so

ORDËRI;O
ENTER

(15~r~e~
Carl F. Becker, J.C.C.
Dated a. t Del~~ New York .
Dece.mber I'f 2009 '

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