Opinion
May 17, 1971
In an action by the grantee under a deed to real property, given pursuant to a sale of a tax lien, to bar all claims to the property pursuant to article 15 of the Real Property Actions and Proceedings Law, defendant Woellner appeals from a judgment of the Supreme Court, Rockland County, entered September 1, 1970 in favor of plaintiff, upon plaintiff's motion for summary judgment and said defendant's cross motion for (1) appointment of a guardian ad litem for her and (2) leave to amend her answer. Judgment reversed, on the law, with $10 costs and disbursements; plaintiff's motion denied; defendant's cross motion granted; and matter remitted to the Supreme Court, Rockland County, for further proceedings in accordance herewith. Plaintiff purchased a tax lien on defendant Woellner's property at a tax sale held on October 19, 1966. It paid $421.24 and received a tax lien certificate. The lien was not redeemed within the statutory period and, in November, 1967, plaintiff obtained a tax deed from the Rockland County Treasurer. It was recorded a month later. Plaintiff commenced this action to bar all claims to the subject property in January, 1970. In opposition to plaintiff's motion for summary judgment, defendant Woellner alleged that she was an incompetent at the time of the tax sale and has remained so to date. Because of her mental state, it was argued, the statutory notices given in connection with the tax sale and redemption period were invalid and the tax deed itself was null and void. In our opinion, Special Term erred in granting plaintiff's motion for summary judgment declaring it the absolute owner in fee simple of the subject property. If defendant Woellner can establish upon trial that she was a known but not adjudicated incompetent at the times of the pertinent proceedings herein and still remains so, there would be no doubt that the statutory notices did not measure up to the requirements of due process ( Covey v. Town of Somers, 351 U.S. 141, 146). Furthermore, although the relevant statute (Real Property Tax Law, § 1020, subd. 4) imposes a two-year Statute of Limitations on actions to set aside a tax deed, it is evident that due process also requires that a known but unprotected incompetent be given a reasonable time within which to avail herself of the remedy of such an action ( Town of Somers v. Covey, 2 N.Y.2d 250, 258, cert. den. 354 U.S. 916) and that there be a committee or guardian available and able to protect the incompetent's interest. Special Term's reliance upon the holding of the Court of Appeals in Town of Somers ( supra) to support its view that the Statute of Limitations barred this defendant's claim was misplaced. In upholding the denial of a motion to vacate the default of a known incompetent in a foreclosure action, the Court of Appeals was careful to emphasize that a committee had been appointed some 20 months prior to the expiration of the limitations period for bringing an action to set aside the deed and that the committee had been specifically and timely informed by a County Court opinion that it was pursuing the wrong procedure in moving to open the default, it being necessary to bring a plenary action to set aside the deed. In the case before us, no one has ever been appointed to protect the alleged incompetent's interests and she claims to be suffering from the same disability even now. In short, we believe that defendant Woellner is entitled to a trial, at which she may establish her status as a known but unprotected incompetent, and a proper resolution of her claims. Under the circumstances presented, we also believe that Special Term should have granted her motion for the appointment of a guardian ad litem to protect her interests (Real Property Actions and Proceedings Law, § 1513) and for leave to amend her answer. Latham, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.