In the Matter of City of Rochester, Appellant, v. Anthony Di Filippo et al., Respondents

In the Matter of City of Rochester, Appellant, v Anthony Di Filippo et al., Respondents. [708 NYS2d 207] [MAJORITY] —Order unanimously reversed on the law without costs, motion denied and judgment and sale reinstated. Memorandum: Supreme Court erred in granting defendants’ motion to vacate the judgment of foreclosure with respect to defendants’ home. Plaintiff foreclosed on the property for nonpayment of taxes. Defendants denied that they received any notices of delinquent taxes or of the pending tax sale. In opposition to the motion, plaintiff submitted affidavits of its Treasurer detailing the steps taken to effect the mass mailing of notices of delinquent taxes and notices of tax foreclosure. One of the properties for which those notices were produced and mailed was defendants’ property, and defendants conceded that they regularly received their mail at the address to which the notices were mailed. Plaintiff thereby established that notices of delinquent taxes and notices of tax foreclosure were mailed to defendants. Neither defendants’ denial of the receipt of notices of delinquent taxes or of notices of tax sale (see, Best v City of Rochester, 195 AD2d 1073, 1074) nor the expenditure of $10,000 in improvements on the property (see, Law v Benedict, 197 AD2d 808, 810) is sufficient to rebut the presumption that the notices were received by defendants (see, Nassau Ins. Co. v Murray, 46 NY2d 828), and thus the judgment of foreclosure and the foreclosure sale must be reinstated. (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Vacate Judgment.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Kehoe, JJ.