DECISION & ORDER Before the Court is Defendants’ partial motion to dismiss the Complaint. See dkt. # 8. The parties have briefed the issues, and the Court will decide the matter without oral argument. I. Background This case concerns a foreclosure action by Defendant Albany County on property owned by Plaintiff The Phoenix of Albany, LLC (“the Phoenix”). Plaintiff alleges that Defendants violated the Phoenix’s constitutional right to due process by depriving Plaintiff of property without notice. See Complaint (“Complt.”), dkt. # 1. The case concerns property located at 143 and 146 Montgomery and Centre Street in Albany, New York. Id. at 9. That property is divided into two parcels, Parcel Number Albany 3088-12 (143 Montgomery Street) and Parcel Number Albany 3088-12-463 (Centre Street). Id. at 10. The parcels consist of three separate tax map numbers. Id. Plaintiff alleges that The Phoenix acquired the property in question from Sunmark Federal Credit Union (“Sunmark”) by deed on August 15, 2017. Id. at 11. Plaintiff recorded the deed in the Albany County Clerk’s Office on August 23, 2017. Id. Sunmark obtained the property by referee’s deed after a foreclosure sale on September 12, 2011. Id. at 12. Albany County commenced a foreclosure action on the property in question on June 11, 2012, citing delinquent 2011 property taxes. Id. at 13. The County had included the property on the 2012 list of Delinquent Tax Parcels filed with Albany County and gave the required notice to Sunmark. Id. The County filed a petition of foreclosure against the property in October 2015. Id. at 14. The County withdrew the petition in October 2017. Id. at 15. At that time, Plaintiff had become the record owner of the property. Id. at 16. On March 1, 2022, Plaintiff discovered that on February 15, 2022 the County and Defendant Albany County Finance Director Jeffrey Neal had obtained a final judgment by default against the property and the Plaintiff’s interest in the property. Id. at 17. Court records demonstrate that the default judgment came after Assistant Albany County Attorney Gregory A. Rutnik filed an affidavit of regularity supported by exhibits. Id. at 18. In obtaining the foreclosure, Plaintiff claims, Defendants represented that they had obtained a Certificate of Reinstatement for the property. Id. at 19. Plaintiff alleges, however, that a review of the records for the foreclosure proceeding indicates that the Defendants never filed a such a certificate. Id. at 20. Plaintiff alleges that Defendants did not follow New York law when they obtained a foreclosure on the property in question. Plaintiff contends that New York real estate law requires that a party that brings a foreclosure proceeding under these circumstances file a copy of the certificate of reinstatement within ten days after issuance of such a certificate. Id. at 20.1 The purpose of such public fling “is to provide public notice as to the reinstatement of the Foreclosure Proceeding.” Id. at 21. Further review by Plaintiff’s attorney in the foreclosure action indicated that no certificate of reinstatement had been filed in the court record, and “[a]s of February 9, 2022, the Albany County Clerk had no record of the Defendant County filing a certificate of reinstatement as required by Article 11 of the Real Property Tax Law in the Foreclosure Petition.” Id. at 25. Additional review satisfied counsel that Defendants “did not file the required certificates of reinstatement as required by the express provisions of the Real Estate Property Tax Law.” Id. at 27. Plaintiff also alleges that Defendants violated the Real Property Tax Law by failing to file a new foreclosure petition for reinstating the parcels, failing to publish and serve notice of the reinstated proceedings, and failing to provide a three-month redemption period following publication of the notice. Id. at
30-39. The Complaint describes the steps necessary to provide proper notice of an intent to foreclose. Id. at 40-44. Plaintiff alleges that the Phoenix’s name and address were available on the public record because the deed from Sunmark had been recorded with the Albany County Clerk in August 2017. Id. at 45. In addition, Plaintif f and the Defendant County had been involved in a dispute in New York State Court and federal bankruptcy court concerning the tax dispute on the property. Id. at 46. In the bankruptcy proceedings, Defendants claimed that Plaintiff owned the property, and stated an interest only in recovering the unpaid property taxes connected to that property. Id. at 47. Defendants filed a proof of claim in the bankruptcy court for unpaid real estate taxes owed by Plaintiff as owner of the property in question. Id. at 48. Plaintiff estimates that the current debt on the property for real estate taxes is less than $600,0000. Id. at 49. Plaintif f is able and ready to pay those arrears. Id. at 50. Rather than accepting these funds, Defendants have instead marketed the property and “engaged in…selling” that property to a third party. Id. at 51. Still, the City of Albany has engaged in several enforcement actions against Plaintiff as property owner, demanding damages for failing to make repairs. Id. at 52. Plaintiff also alleges that the Phoenix paid property taxes on the property in 2021, and that such taxes ‘were accepted and applied.” Id. at 53. Plaintiff alleges that “Defendants’ actions in marketing and selling the Property to a third-party developer [and] the Defendants’ failure to provide notice of the reinstated Property tax foreclosure proceeding, without notice of the Plaintiffs” were an intentional effort “to deprive Plaintiff of its interest in the property without due process.” Id. at 54. Defendants’ actions allegedly left “Plaintiff unable to respond to the reinstated tax foreclosure proceedings related to the property.” Id. at 55. Plaintiff alleges that the Phoenix “lacked actual or constructive notice of reinstatement of the Foreclosure Proceeding against the Property by the Defendants prior to the entry of Default Judgment of Foreclosure.” Id. at 57. This conduct resulted in Plaintiff failing to file an answer to the reinstated tax foreclosure action and the Albany County Supreme Court entering a default judgment against The Phoenix. Id. at
