Appellate Division of the Supreme Court of New York, 1982

Van Wormer v. Leversee

Appellate Division of the Supreme Court of New York · Decided April 29, 1982

87 A.D.2d 942; 451 N.Y.S.2d 237; 1982 N.Y. App. Div. LEXIS 16471

Cases that cite this one

21 later published cases cite this decision.

Shifer v. Shifer (Appellate Division of the Supreme Court of New York 2018)
In re the Acquisition of Real Property by the State (Appellate Division of the Supreme Court of New York 2017)
In re the Acquisition of Real Property by the State (Appellate Division of the Supreme Court of New York 2017)
Mary's Bus Service, Inc. v. Rondout Valley Central School District (Appellate Division of the Supreme Court of New York 1997)
Westwood Pharmaceuticals, Inc. v. Chu (Appellate Division of the Supreme Court of New York 1990)
Brookhaven Memorial Hospital Medical Center, Inc. v. County of Suffolk (Appellate Division of the Supreme Court of New York 1989)
Olden v. Bolton (Appellate Division of the Supreme Court of New York 1988)
Central Buffalo Project Corp. v. Rainbow Salads, Inc. (Appellate Division of the Supreme Court of New York 1988)
In re Dixie Lu EE. (Appellate Division of the Supreme Court of New York 1988)
Heuer v. Heuer (Appellate Division of the Supreme Court of New York 1987)
Vanderbilt Realty Corp. v. Gordon (Appellate Division of the Supreme Court of New York 1987)
Gaines v. Kelly (Appellate Division of the Supreme Court of New York 1986)
Floreck v. Citibank (Appellate Division of the Supreme Court of New York 1986)
People v. Simon (Appellate Division of the Supreme Court of New York 1985)
Tomlinson v. Board of Education (Appellate Division of the Supreme Court of New York 1985)
Arvantides v. Arvantides (Appellate Division of the Supreme Court of New York 1984)
Boylan v. G. L. Morrow Co. (Appellate Division of the Supreme Court of New York 1983)
Aluminum Fair, Inc. v. Abdella (Appellate Division of the Supreme Court of New York 1982)
State v. Monarch Chemicals, Inc. (Appellate Division of the Supreme Court of New York 1982)
Gibbons v. City of Troy (Appellate Division of the Supreme Court of New York 1982)
Lyons v. Quandt (Appellate Division of the Supreme Court of New York 1982)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Appeal from a judgment of the Supreme Court at Special Term (Viscardi, J.), entered October 7, 1980 in Schenectady County, which dismissed petitioners’ application for certain relief pursuant to CPLR article 78. Petitioners sought to have Special Term declare the auction *943of certain real property null and void, to restrain and enjoin the approval of the purchase bid of respondents Beecher and Vivienne Leversee for the property and to enjoin the tender of the properties to the Leversees pursuant to Schenectady County Resolution No. 179-72. Respondents Leversee and Schenectady County moved to dismiss the petition. Special Term held that petitioners were collaterally estopped from asserting their claims in the proceeding and dismissed their petition. The facts giving rise to this controversy are as follows: Petitioners inherited a farm under the terms of their grandfather’s will in 1966. Before then, their father occupied and used the land under a life tenancy. He had failed to pay real estate taxes on the property for a number of years. The county conveyed the land in 1969 after a tax sale to the respondents Leversee. Petitioners attempted unsuccessfully to redeem the property in 1970 pursuant to sections 1010 and 1022 of the Real Property Tax Law. Petitioners then commenced an action in 1976 pursuant to article 15 of the Real Property Actions and Proceedings Law to establish their entitlement tp the property. The court held in that action that neither the petitioners nor the Leversees had an entitlement to the property and that the County of Schenectady was the title owner. That judgment further held that the Leversees had an equitable lien for the improvements they had made on the property. A notice of appeal from that judgment was filed by both petitioners and the respondents Lever-see. Neither appeal was perfected. On May 20,1980, Schenectady County sold the property at public auction to the Leversees who were the highest bidders. Petitioners urge that Special Term erred in applying the doctrine of collateral estoppel in dismissing their petition. We disagree. It is well established that collateral estoppel is appropriately invoked when an identical issue has been decided in a prior action and the litigants had a full and fair opportunity to contest the decision said to be controlling (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Hyman v Hillelson, 79 AD2d 725, affd 55 NY2d 624). Here petitioners’ claim to ownership had been fully adjudicated in the previous Supreme Court action and their relitigation of a claim to ownership in this proceeding is conclusively barred by the prior judgment. Finally, we note that petitioners have attempted for the first time on appeal to raise the application of section 1002 of the Real Property Tax Law and/or Schenectady County Resolution No. 179-72 to the instant case. They urge that they were entitled under section 1002 of the Real Property Tax Law to notice of the instant tax sale as last assessed owners of the property. Without passing on the merits of such a contention, we note that a party may not urge grounds for appeal at the appellate level which were not first raised in the court of original instance. Judgment affirmed, with one bill of costs to respondents. Kane, J. P., Main, Mikoll, Weiss and Levine, JJ., concur.

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