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Volume 6 - Opinions of Counsel SBEA No. 86

Opinions of Counsel index

Taxes (delinquent) (notice requirement) - County Law, § 214; Real Property Tax Lien, §§ 1002, 1014, 1046, 1124:

The requirements of the Real Property Tax Law with respect to notice by publication are satisfied if the notice is published in those copies of designated newspapers which are circulated only within the county or tax district.

We have been asked whether the publication of notices of tax lien sales, unredeemed lands and related notices required by the Real Property Tax Law may be limited to the editions of those newspapers distributed only within the county responsible for the publication. That is, if appropriately designated newspapers have multi-county circulation by separate editions, may the county limit publication of the required notices to the edition of the official or designated newspaper published for the county in question?

The Real Property Tax Law provides in various sections for publication of notices of tax delinquencies. Section 1002(1) and 1014(1) require publication of notice of a tax lien sale and unredeemed lands, respectively, in “the newspapers designated . . . for the publication of concurrent resolutions.” Subdivision 1 of section 214 of the County Law sets forth the requirements for the designation of newspapers for the publication of concurrent resolutions, election notices and the official canvass.

Section 1046 of the Real Property Tax Law requires the publication of a notice of a sale of tax liens at a bulk tax sale in the “official newspaper.” Official newspapers are designated in accordance with the requirements of subdivision 2 of section 214 of the County Law. Finally, subdivision 1 of section 1124 of the Real Property Tax Law requires the enforcing officer to cause a notice of in rem foreclosure to be published “in two newspapers designated by him and published in the tax district.”

Whether the newspaper in which the notice is to be published is that designated for the publication of concurrent resolutions, or the official newspaper, or those chosen by the enforcing officer pursuant to section 1124 of the Real Property Tax Law, in each case it is apparent that the statutes are directed at ensuring notice to those residing within the county. This follows from an examination of each of the statutes. For example, subdivision 1 of section 214 of the County Law requires the designation of the newspaper for publication of concurrent resolutions to be determined in part on “the extent of the circulation in the county.” Similarly, subdivision 2 of section 214 provides for the designation of the official newspaper and requires consideration to be given to “the general circulation throughout the county.” In both subdivisions 1 and 2 of section 214 of the County Law, and subdivision 1 of section 1124 of the Real Property Tax Law, the first choice of a newspaper for publication purposes is one published within the county (or tax district as provided in § 1124). Thus, the entire statutory framework appears to be designed to guarantee notice by publication to county residents.

Support for this proposition is found in the case of Myers Brooks Co. v. Board of Supervisors of Fulton County, 68 Misc.2d 1033, 328 N.Y.S.2d 741, wherein a petition was brought pursuant to Article 78 of the Civil Practice Law and Rules to compel the Fulton County Board of Supervisors to designate a particular publication as an “official newspaper.” The court rejected the petition and stated as follows: “The Board has a duty to expend public moneys without waste and inefficiency. The objective in the selection of an official newspaper is to assure that official notices are read by as many people throughout the county as possible” (328 N.Y.S.2d at 743) (emphasis added). Although this particular case did not involve the issue of a notice of tax delinquency, we see no reason why the rationale in the quoted sentences would not apply equally to such a notice.

Moreover, in light of the increased reliance upon notice by mail rather than publication (see, e.g., Real Property Tax Law, §§ 1002, 1014, 1124; see also, Botens v. Aronauer, 32 N.Y.2d 243, 298 N.E.2d 73, 344 N.Y.S.2d 892, app. dsmd., 414 U.S.1059, 94 S.Ct.562, 38 L.Ed.2d 464), we believe that a county would not violate the intent of the statute by restricting publication to copies of the newspaper(s) circulated solely within that county.

Therefore, in our judgment the requirements of the Real Property Tax Law relating to publication of notice under sections 1002, 1014, 1046, and 1124 are satisfied if the required notices are set forth in those editions of the appropriately designated newspapers circulated only within the particular county or tax district.

August 14, 1979