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FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024
SUPREME COURT : STATE OF NEW YORK
COUNTY OF SCHUYLER
SUZANNE SHEA,
AFFIDAVIT IN
Plaintiff, OPPOSITION TO
v. DEFENDANT COUNTY OF
SCHUYLER'S MOTION TO
COUNTY OF SCHUYLER and DISMISS
MATTHEW NOVAK,
Index No. E2023-0145
Defendants.
STATE OF NEW YORK)
COUNTY OF TOMPKINS) ss.:
Kirstin E. Tiffany, Esq., being duly sworn, deposes and says:
1. That she is the attorney for the Plaintiff herein and makes this affidavit in opposition
to Defendant County of Schuyler's motion to dismiss the complaint.
2. That Plaintiff was the previous owner of 2740 County Road 23, Watkins Glen, New
York, also known as Tax Map No. 63.00-1-8 (hereinafter "House Parcel") and a parcel of land on
County Road 23 in Watkins Glen, New York, also known as Tax Map No. 63.00-1-9 (hereinafter
"Land Parcel")(collectively the "Property").
3. Plaintiff commenced the instant action on September 15, 2023.
4. Prior to filing an Answer, Defendant Schuyler County filed a Motion to Dismiss
based on Plaintiff's alleged failure to state a cause of action against Schuyler County, on Plaintiff's
alleged failure to state a cause of action against Schuyler County due to the doctrine of qualified
immunity, an alleged statute of limitations issue, and an alleged failure to join necessary parties.
5. Additionally, Defendant Schuyler County filed in the alternative to its Motion to
Dismiss, a Motion for Summary Judgment and a Motion to Sever the action against Defendant
Matthew Novak.
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6. That Plaintiff, in conjunction with this Affidavit, is submitting a memorandum of
law in opposition to Defendant's Motion to Dismiss.
PLAINTIFF'S COMPLAINT SUFFICIENTLY PLEADS A CAUSE OF ACTION
7. Plaintiff in the instant action has stated one cause of action, pursuant to 42 U.S.C.
§ 1983, against Schuyler County to recover damages for an unconstitutional taking of the Property
under the Fifth Amendment of the United States Constitution.
8. When considering pre-answer motions to dismiss for failure to state a cause of
action, the court must review the pleadings with liberal construction, accept the allegations as true,
and accord the plaintiff every favorable possible inference.
9. If the court can discern from the facts plead any cognizable cause of action, a
motion to dismiss will fail.
10. In this case before this Court, the Plaintiff has adequately plead a cause of action.
11. The actions of Schuyler County amount to a cognizable cause of action pursuant to
Tyler v. Hennepin County, 143 S. Ct. 1369 (2023).
12. Plaintiff was the owner of 2740 County Road 23, Watkins Glen, New York (Tax
Map. No. 63.00-1-8) and an adjacent parcel of land (Tax Map. No. 63.00-1-9) (collectively, the
"Property").
13. In 2021 and 2022, Defendant Schuyler County commenced one or more in rem
foreclosure actions in connection with unpaid property taxes on the Property, and one of more
judgments of foreclosure were issued in connection with said in rem foreclosure actions.
14. At the time the Property was conveyed to Defendant Schuyler County, Plaintiff
owed unpaid real property taxes on the Property in the amount of $18,487.87. According to the
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Schuyler County Assessment Department, in 2022 the full market value of the Property totaled
$185,675.00.
15. As a result of the conveyance of the Property to Defendant Schuyler County, all of
Plaintiff's right, title and interest in the Property was terminated and forfeited.
16. In September 2022, Defendant Matthew Novak purchased the Property from the
Defendant Schuyler County through an online auction conducted by third party auctioneer.
Defendant Novak purchased the Property for a total winning bid of $111,300.00.
17. The Property was thereafter conveyed to Defendant Novak by deeds dated
December 15, 2022, and recorded December 16, 2022, as Instrument Numbers 2671 and 2672.
18. Following the conveyance of the Property to Defendant Novak, Plaintiff contacted
Stephen Getman, Schuyler County Attorney, to inquire as to her receipt of the auction proceeds in
excess of the taxes and fees owed to the Defendant Schuyler County. At that time, the Plaintiff was
informed that Defendant Schuyler County would not be paying to her any surplus monies.
19. To date the Plaintiff has received no surplus auction proceeds from Defendant
Schuyler County.
20. The County's retention of Plaintiff's surplus amounts to an unlawful taking.
21. Based on the four corners of the complaint, which specifically outlined Plaintiff's
protectable property interest in the surplus proceeds from the in rem foreclosure sale of her home,
and the fact that such proceeds were never turned over by the County to Plaintiff following the
auction of her Property, Plaintiff sufficiently alleges a cause of action against Defendant Schuyler
County.
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22. Although the County claims that Tyler v. Hennepin County, 143 S. Ct. 1369 (2023),
upon which Plaintiff relies, cannot be retroactively applied, New York law permits the retroactive
application in certain circumstances, which are applicable here.
23. Defendant's assertion that Tyler v. Hennepin County does not apply retroactively is
a fact intensive analysis and not appropriate for a pre-answer motion to dismiss. Nonetheless,
Plaintiff will address the issue at this juncture.
24. In determining whether the retroactive application of law applies, the courts
consider three factors as outlined by Gurnee v. Aetna Life & Casualty Co., 55 N.Y.2d 184, 192
(1982): (1) whether the decision establishes a new principle of law; (2) the prior history of the rule
and the impact of retroactive application upon its purpose and effect; and (3) any inequity that
would be created by retroactive application.
25. It is the Third Department's position that changes in decisional law are normally
applied to all cases where the claims are not barred by the statute of limitations.
26. The rule established in Tyler v. Hennepin County, was not new law. The County
cites Matter of Hoge v. Chautauqua County, 173 A.D.3d 1731 (4th Dept. 2019), as proof of this
allegedly longstanding forfeiture rule, but Hoge bases its holding on Nelson v. City of New York,
352 U.S. 103 (1956), and as the Supreme Court shows in Tyler v. Hennepin County, the ordinance
in New York that was at issue in Nelson permitted an owner to reclaim any surplus.
27. As the Supreme Court in Tyler v. Hennepin County notes, the forfeiture statute used
by New York is followed only by a minority of states. 143 S.Ct. at 1378. The holding in Tyler v.
foreshadowed"
Hennepin County was "clearly and not new law, thus, the retroactive application
of the case is appropriate. In re Taihem F., 222 A.D.2d 322, 323 (1st Dept. 1995).
4
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28. Moreover, it is the aforementioned forefeiture statute that is the "official policy or
custom"
which must be necessarily plead or proven as a precondition to a section 1983 action.
29. In addition, despite the protestations of the County, the retroactive application of
Tyler v. Hennepin County, to the case at bar will not be particularly disruptive.
30. The County's 2024 budget exceeds $65 million. Any recovery by Plaintiff would
be but a small fraction of the County's total budget. Indeed, the County has built into its budget a
contingency of $250,000, which well exceeds the claim made by the Plaintiff. See Budget of
Schuyler County, annexed hereto as EXHIBIT A.
31. Although the County claims an inequity in that it has already spent the forfeited
funds, money is fungible. The County can budget to pay for this claim. The County had an
opportunity to do so in its 2024 budget, which was not approved until two months after the instant
action was commenced, yet it elected not to.
32. Furthermore, the purpose of a tax foreclosure is to reimburse the County for unpaid
taxes, not to generate income by retaining the surplus of the proceeds after each sale.
33. The impact of the retroactive application will only allow those individuals, whose
causes of action are within the statute of limitations, to attempt to reclaim the funds above the
repayment of the taxes.
34. It is against equity to not apply this law retroactively and to continue to allow the
County to claim for its own coffers any equity a debtor may have above its payment for back due
taxes.
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35. For the foregoing reasons, Plaintiff's complaint should not be dismissed for failure
to state a claim since Plaintiff adequately alleges a cause of action against the County and because
Tyler v. Hennepin County retroactively applies.
QUALIFIED IMMUNITY IS INAPPLICABLE TO THE COUNTY AS A WHOLE
AND IT IS PREMATURE TO ATTEMPT TO DETERMINE THE
APPLICABILITY TO INDIVIDUALS WHEN DISCOVERY HAD NOT
STARTED
36. Defendant Schuyler County asserts that the complaint fails to state a cause of
action due to qualified immunity.
37. Defendant Schuyler County acknowledges that qualified immunity only applies to
suits against government officials as individuals, not suits against the government for damages
officials'
caused by the actions.
38. In the absence of discovery, it is factually impossible to determine if individual
wrongdoing occurred at this point in time.
39. Accordingly, Defendant's Motion to Dismiss for failure to state a cause of action
due to qualified immunity should be denied.
THE STATUTE OF LIMITATIONS HAS NOT LAPSED SINCE THE STATUTE OF
LIMITATIONS PURSUANT TO 42 USC § 1983 IS THREE YEARS
40. Schuyler County asserts that Plaintiff lost all of her rights, title and interest to the
Property on the date of the judgment of foreclosure and that said date would be the date when
Plaintiff's cause of action accrued.
41. Schuyler County asserts that the Statute of Limitations expired after one year and
ninety days.
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42. However, the statute of limitations for a cause of action for damages for civil rights
violations pursuant to 42 USC § 1983 is three years.
43. An unconstitutional taking pursuant to the Fifth Amendment of the United States
Constitution is a civil rights violation, for which the statute of limitations is three years. It is not
an action which involves an injury to an interest in real property pursuant to General Construction
Law Section 25-b, as Defendant claims.
44. The appropriate statute of limitations in the case at bar is three years. Or at the very
least, a question of fact now exists as to the applicable statute of limitations, and accordingly, the
motion to dismiss should be denied.
PLAINTIFF DID NOT FAIL TO JOIN NECESSARY PARTIES BECAUSE THE
JUDGMENT CREDITORS LOST THEIR LIEN WITH THE FORECLOSURE OF THE
PROPERTY
45. Schuyler County claims that Plaintiff failed to join necessary parties because she
had judgments against her at the time of the tax foreclosure.
46. However, Plaintiff's judgment creditors were not included as defendants since the
creditors'
occurrence of the County's tax sale extinguished all of Plaintiff's liens.
47. In this action, Plaintiff is not seeking to rescind the conveyances and restore title to
her name, so including the creditors as defendants is not necessary.
48. Plaintiff still remains liable for the judgments and any collection by the creditors,
as a result of the extinguishment of their lien, must collect through alternative avenues.
49. Nonetheless, should this Court deem Plaintiff's judgment creditors to be necessary
parties, in accordance with the position of the Third Department in Sorbello v. Birchez Assoc. LLC,
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the action should not be dismissed but instead Plaintiff should be directed to amend her complaint
to include the creditors as defendants. 65 A.D.3d, 1225, 1226 (3d Dept. 2009).
50. Accordingly, Defendant's Motion to Dismiss for failure to join necessary parties
should be dismissed, or alternatively, Plaintiff should be granted leave to amend her complaint to
include judgment creditors as defendants.
SUMMARY JUDGMENT IS PREMATURE SINCE ISSUE HAS NOT BEEN JOINED,
THIS COURT HAS NOT PROVIDED NOTICE OF INTENT TO TREAT THE MOTION
AS ONE FOR SUMMARY JUDGMENT AND THE PARTIES HAVE NOT CHARTED A
SUMMARY JUDGMENT COURSE.
51. Schuyler County's motion for summary judgment is premature at this juncture.
52. Schuyler County has not filed an answer in this action, so summary judgment
pursuant to CPLR 3212 is improper, as issue must be joined.
53. This Court has not provided notice of intent to treat the motion as one for summary
judgment, nor have the parties charted a summary judgment course, so summary judgment
pursuant to CPLR 3211(c) is improper.
54. Moreover, genuine issues of material fact exist as it relates to the cause of action
against Schuyler County, as well as the amount of damages, so summary judgment should not be
granted.
55. Therefore, the motion for summary judgment should be denied.
DEFENDANT'S MOTION TO SEVER SHOULD BE DENIED SINCE IT IS UNCLEAR
AT THIS JUNCTURE IF COMMON ISSUES OF LAW OR FACT EXIST AND
SEVERING WOULD RESULT IN A WASTE OF JUDICIAL RESOURCES.
56. Defendant Schuyler County's motion to sever should be denied.
57. Schuyler County asserts that severing the matter from Defendant Matthew Novak
is essential to avoid undue prejudice and to facilitate the speedy resolution of the matter.
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58. Schuyler County claims the causes of action are so distinct that they do not involve
common questions of law or fact.
59. However, Schuyler County has not yet filed an answer.
60. It is unknown, at this point in the litigation, whether or not common issues of law
or fact exist when no answer has been filed by Schuyler County.
61. Severing the matter would also ultimately result in an extreme waste of judicial
resources, thus requiring two separate trials, two separate juries, and separate conferences
throughout the course of litigation.
62. Additionally, there is a likelihood that both cases will share some witnesses.
63. Furthermore, a jury could be instructed in such a manner to distinguish the matters
between the two defendants in order to eliminate any possibility of prejudice.
64. For the foregoing reasons Defendant Schuyler County's motion to sever should be
denied.
WHEREFORE your deponent respectfully requests this court issue an order denying
Defendant Schuyler County's motion to dismiss.
KIJisTIN EþF A Q.
Sworn to before me on this
16th
day of January 2024.
Notary P b c
KERRY LYNN WILKINSON
NOTARY PUBLIC-STATE OF NEW YORK
No. 01Wl6395618
Qualified in Cayuga County
Commission Expires 07-20-2027
My
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CERTIFICATE OF WORD COUNT
Case Name: Suzanne Shea v. County of Schuyler and Matthew Novak
Index No.: E2023-0145
Document Title: Affidavit in Opposition to Defendant County of Schuyler's Motion to Dismiss
Pursuant to Rule 202.8-b of the Uniform Trial Court Rules, I certify that the accompanying
affidavit contains 2,252 words, excluding the parts of the document that are exempt by the Rule.
This certificate was prepared in reliance on the word-count function of the word processing system
Microsoft Word used to prepare this document.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: January 16, 2024
K STIN EJIFÉA , E)Q.
ROSSMORE & TIF ANY
Attorneys for Plaintiff
Office and P.O. Address
115 West Green Street
Ithaca, New York 14850
Tel. (607) 273-5787
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Preview
FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 SUPREME COURT : STATE OF NEW YORK COUNTY OF SCHUYLER SUZANNE SHEA, AFFIDAVIT IN Plaintiff, OPPOSITION TO v. DEFENDANT COUNTY OF SCHUYLER'S MOTION TO COUNTY OF SCHUYLER and DISMISS MATTHEW NOVAK, Index No. E2023-0145 Defendants. STATE OF NEW YORK) COUNTY OF TOMPKINS) ss.: Kirstin E. Tiffany, Esq., being duly sworn, deposes and says: 1. That she is the attorney for the Plaintiff herein and makes this affidavit in opposition to Defendant County of Schuyler's motion to dismiss the complaint. 2. That Plaintiff was the previous owner of 2740 County Road 23, Watkins Glen, New York, also known as Tax Map No. 63.00-1-8 (hereinafter "House Parcel") and a parcel of land on County Road 23 in Watkins Glen, New York, also known as Tax Map No. 63.00-1-9 (hereinafter "Land Parcel")(collectively the "Property"). 3. Plaintiff commenced the instant action on September 15, 2023. 4. Prior to filing an Answer, Defendant Schuyler County filed a Motion to Dismiss based on Plaintiff's alleged failure to state a cause of action against Schuyler County, on Plaintiff's alleged failure to state a cause of action against Schuyler County due to the doctrine of qualified immunity, an alleged statute of limitations issue, and an alleged failure to join necessary parties. 5. Additionally, Defendant Schuyler County filed in the alternative to its Motion to Dismiss, a Motion for Summary Judgment and a Motion to Sever the action against Defendant Matthew Novak. 1 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 6. That Plaintiff, in conjunction with this Affidavit, is submitting a memorandum of law in opposition to Defendant's Motion to Dismiss. PLAINTIFF'S COMPLAINT SUFFICIENTLY PLEADS A CAUSE OF ACTION 7. Plaintiff in the instant action has stated one cause of action, pursuant to 42 U.S.C. § 1983, against Schuyler County to recover damages for an unconstitutional taking of the Property under the Fifth Amendment of the United States Constitution. 8. When considering pre-answer motions to dismiss for failure to state a cause of action, the court must review the pleadings with liberal construction, accept the allegations as true, and accord the plaintiff every favorable possible inference. 9. If the court can discern from the facts plead any cognizable cause of action, a motion to dismiss will fail. 10. In this case before this Court, the Plaintiff has adequately plead a cause of action. 11. The actions of Schuyler County amount to a cognizable cause of action pursuant to Tyler v. Hennepin County, 143 S. Ct. 1369 (2023). 12. Plaintiff was the owner of 2740 County Road 23, Watkins Glen, New York (Tax Map. No. 63.00-1-8) and an adjacent parcel of land (Tax Map. No. 63.00-1-9) (collectively, the "Property"). 13. In 2021 and 2022, Defendant Schuyler County commenced one or more in rem foreclosure actions in connection with unpaid property taxes on the Property, and one of more judgments of foreclosure were issued in connection with said in rem foreclosure actions. 14. At the time the Property was conveyed to Defendant Schuyler County, Plaintiff owed unpaid real property taxes on the Property in the amount of $18,487.87. According to the 2 2 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 Schuyler County Assessment Department, in 2022 the full market value of the Property totaled $185,675.00. 15. As a result of the conveyance of the Property to Defendant Schuyler County, all of Plaintiff's right, title and interest in the Property was terminated and forfeited. 16. In September 2022, Defendant Matthew Novak purchased the Property from the Defendant Schuyler County through an online auction conducted by third party auctioneer. Defendant Novak purchased the Property for a total winning bid of $111,300.00. 17. The Property was thereafter conveyed to Defendant Novak by deeds dated December 15, 2022, and recorded December 16, 2022, as Instrument Numbers 2671 and 2672. 18. Following the conveyance of the Property to Defendant Novak, Plaintiff contacted Stephen Getman, Schuyler County Attorney, to inquire as to her receipt of the auction proceeds in excess of the taxes and fees owed to the Defendant Schuyler County. At that time, the Plaintiff was informed that Defendant Schuyler County would not be paying to her any surplus monies. 19. To date the Plaintiff has received no surplus auction proceeds from Defendant Schuyler County. 20. The County's retention of Plaintiff's surplus amounts to an unlawful taking. 21. Based on the four corners of the complaint, which specifically outlined Plaintiff's protectable property interest in the surplus proceeds from the in rem foreclosure sale of her home, and the fact that such proceeds were never turned over by the County to Plaintiff following the auction of her Property, Plaintiff sufficiently alleges a cause of action against Defendant Schuyler County. 3 3 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 22. Although the County claims that Tyler v. Hennepin County, 143 S. Ct. 1369 (2023), upon which Plaintiff relies, cannot be retroactively applied, New York law permits the retroactive application in certain circumstances, which are applicable here. 23. Defendant's assertion that Tyler v. Hennepin County does not apply retroactively is a fact intensive analysis and not appropriate for a pre-answer motion to dismiss. Nonetheless, Plaintiff will address the issue at this juncture. 24. In determining whether the retroactive application of law applies, the courts consider three factors as outlined by Gurnee v. Aetna Life & Casualty Co., 55 N.Y.2d 184, 192 (1982): (1) whether the decision establishes a new principle of law; (2) the prior history of the rule and the impact of retroactive application upon its purpose and effect; and (3) any inequity that would be created by retroactive application. 25. It is the Third Department's position that changes in decisional law are normally applied to all cases where the claims are not barred by the statute of limitations. 26. The rule established in Tyler v. Hennepin County, was not new law. The County cites Matter of Hoge v. Chautauqua County, 173 A.D.3d 1731 (4th Dept. 2019), as proof of this allegedly longstanding forfeiture rule, but Hoge bases its holding on Nelson v. City of New York, 352 U.S. 103 (1956), and as the Supreme Court shows in Tyler v. Hennepin County, the ordinance in New York that was at issue in Nelson permitted an owner to reclaim any surplus. 27. As the Supreme Court in Tyler v. Hennepin County notes, the forfeiture statute used by New York is followed only by a minority of states. 143 S.Ct. at 1378. The holding in Tyler v. foreshadowed" Hennepin County was "clearly and not new law, thus, the retroactive application of the case is appropriate. In re Taihem F., 222 A.D.2d 322, 323 (1st Dept. 1995). 4 4 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 28. Moreover, it is the aforementioned forefeiture statute that is the "official policy or custom" which must be necessarily plead or proven as a precondition to a section 1983 action. 29. In addition, despite the protestations of the County, the retroactive application of Tyler v. Hennepin County, to the case at bar will not be particularly disruptive. 30. The County's 2024 budget exceeds $65 million. Any recovery by Plaintiff would be but a small fraction of the County's total budget. Indeed, the County has built into its budget a contingency of $250,000, which well exceeds the claim made by the Plaintiff. See Budget of Schuyler County, annexed hereto as EXHIBIT A. 31. Although the County claims an inequity in that it has already spent the forfeited funds, money is fungible. The County can budget to pay for this claim. The County had an opportunity to do so in its 2024 budget, which was not approved until two months after the instant action was commenced, yet it elected not to. 32. Furthermore, the purpose of a tax foreclosure is to reimburse the County for unpaid taxes, not to generate income by retaining the surplus of the proceeds after each sale. 33. The impact of the retroactive application will only allow those individuals, whose causes of action are within the statute of limitations, to attempt to reclaim the funds above the repayment of the taxes. 34. It is against equity to not apply this law retroactively and to continue to allow the County to claim for its own coffers any equity a debtor may have above its payment for back due taxes. 5 5 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 35. For the foregoing reasons, Plaintiff's complaint should not be dismissed for failure to state a claim since Plaintiff adequately alleges a cause of action against the County and because Tyler v. Hennepin County retroactively applies. QUALIFIED IMMUNITY IS INAPPLICABLE TO THE COUNTY AS A WHOLE AND IT IS PREMATURE TO ATTEMPT TO DETERMINE THE APPLICABILITY TO INDIVIDUALS WHEN DISCOVERY HAD NOT STARTED 36. Defendant Schuyler County asserts that the complaint fails to state a cause of action due to qualified immunity. 37. Defendant Schuyler County acknowledges that qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages officials' caused by the actions. 38. In the absence of discovery, it is factually impossible to determine if individual wrongdoing occurred at this point in time. 39. Accordingly, Defendant's Motion to Dismiss for failure to state a cause of action due to qualified immunity should be denied. THE STATUTE OF LIMITATIONS HAS NOT LAPSED SINCE THE STATUTE OF LIMITATIONS PURSUANT TO 42 USC § 1983 IS THREE YEARS 40. Schuyler County asserts that Plaintiff lost all of her rights, title and interest to the Property on the date of the judgment of foreclosure and that said date would be the date when Plaintiff's cause of action accrued. 41. Schuyler County asserts that the Statute of Limitations expired after one year and ninety days. 6 6 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 42. However, the statute of limitations for a cause of action for damages for civil rights violations pursuant to 42 USC § 1983 is three years. 43. An unconstitutional taking pursuant to the Fifth Amendment of the United States Constitution is a civil rights violation, for which the statute of limitations is three years. It is not an action which involves an injury to an interest in real property pursuant to General Construction Law Section 25-b, as Defendant claims. 44. The appropriate statute of limitations in the case at bar is three years. Or at the very least, a question of fact now exists as to the applicable statute of limitations, and accordingly, the motion to dismiss should be denied. PLAINTIFF DID NOT FAIL TO JOIN NECESSARY PARTIES BECAUSE THE JUDGMENT CREDITORS LOST THEIR LIEN WITH THE FORECLOSURE OF THE PROPERTY 45. Schuyler County claims that Plaintiff failed to join necessary parties because she had judgments against her at the time of the tax foreclosure. 46. However, Plaintiff's judgment creditors were not included as defendants since the creditors' occurrence of the County's tax sale extinguished all of Plaintiff's liens. 47. In this action, Plaintiff is not seeking to rescind the conveyances and restore title to her name, so including the creditors as defendants is not necessary. 48. Plaintiff still remains liable for the judgments and any collection by the creditors, as a result of the extinguishment of their lien, must collect through alternative avenues. 49. Nonetheless, should this Court deem Plaintiff's judgment creditors to be necessary parties, in accordance with the position of the Third Department in Sorbello v. Birchez Assoc. LLC, 7 7 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 the action should not be dismissed but instead Plaintiff should be directed to amend her complaint to include the creditors as defendants. 65 A.D.3d, 1225, 1226 (3d Dept. 2009). 50. Accordingly, Defendant's Motion to Dismiss for failure to join necessary parties should be dismissed, or alternatively, Plaintiff should be granted leave to amend her complaint to include judgment creditors as defendants. SUMMARY JUDGMENT IS PREMATURE SINCE ISSUE HAS NOT BEEN JOINED, THIS COURT HAS NOT PROVIDED NOTICE OF INTENT TO TREAT THE MOTION AS ONE FOR SUMMARY JUDGMENT AND THE PARTIES HAVE NOT CHARTED A SUMMARY JUDGMENT COURSE. 51. Schuyler County's motion for summary judgment is premature at this juncture. 52. Schuyler County has not filed an answer in this action, so summary judgment pursuant to CPLR 3212 is improper, as issue must be joined. 53. This Court has not provided notice of intent to treat the motion as one for summary judgment, nor have the parties charted a summary judgment course, so summary judgment pursuant to CPLR 3211(c) is improper. 54. Moreover, genuine issues of material fact exist as it relates to the cause of action against Schuyler County, as well as the amount of damages, so summary judgment should not be granted. 55. Therefore, the motion for summary judgment should be denied. DEFENDANT'S MOTION TO SEVER SHOULD BE DENIED SINCE IT IS UNCLEAR AT THIS JUNCTURE IF COMMON ISSUES OF LAW OR FACT EXIST AND SEVERING WOULD RESULT IN A WASTE OF JUDICIAL RESOURCES. 56. Defendant Schuyler County's motion to sever should be denied. 57. Schuyler County asserts that severing the matter from Defendant Matthew Novak is essential to avoid undue prejudice and to facilitate the speedy resolution of the matter. 8 8 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 58. Schuyler County claims the causes of action are so distinct that they do not involve common questions of law or fact. 59. However, Schuyler County has not yet filed an answer. 60. It is unknown, at this point in the litigation, whether or not common issues of law or fact exist when no answer has been filed by Schuyler County. 61. Severing the matter would also ultimately result in an extreme waste of judicial resources, thus requiring two separate trials, two separate juries, and separate conferences throughout the course of litigation. 62. Additionally, there is a likelihood that both cases will share some witnesses. 63. Furthermore, a jury could be instructed in such a manner to distinguish the matters between the two defendants in order to eliminate any possibility of prejudice. 64. For the foregoing reasons Defendant Schuyler County's motion to sever should be denied. WHEREFORE your deponent respectfully requests this court issue an order denying Defendant Schuyler County's motion to dismiss. KIJisTIN EþF A Q. Sworn to before me on this 16th day of January 2024. Notary P b c KERRY LYNN WILKINSON NOTARY PUBLIC-STATE OF NEW YORK No. 01Wl6395618 Qualified in Cayuga County Commission Expires 07-20-2027 My 9 9 of 10 FILED: SCHUYLER COUNTY CLERK 01/16/2024 04:58 PM INDEX NO. e2023-0145 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/16/2024 CERTIFICATE OF WORD COUNT Case Name: Suzanne Shea v. County of Schuyler and Matthew Novak Index No.: E2023-0145 Document Title: Affidavit in Opposition to Defendant County of Schuyler's Motion to Dismiss Pursuant to Rule 202.8-b of the Uniform Trial Court Rules, I certify that the accompanying affidavit contains 2,252 words, excluding the parts of the document that are exempt by the Rule. This certificate was prepared in reliance on the word-count function of the word processing system Microsoft Word used to prepare this document. I declare under penalty of perjury that the foregoing is true and correct. Dated: January 16, 2024 K STIN EJIFÉA , E)Q. ROSSMORE & TIF ANY Attorneys for Plaintiff Office and P.O. Address 115 West Green Street Ithaca, New York 14850 Tel. (607) 273-5787 10 of 10