In Rem Tax Foreclosure Action No. 49, 2011 NY Slip Op 01690 [82 AD3d 467]

March 8, 2011

Appellate Division, First Department

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Jonathan David Bachrach, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondents.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 5, 2009, which, in an in rem tax lien foreclosure action, granted the motion of the City third-party defendants to dismiss third-party plaintiff-appellant’s counterclaims and third-party claims and denied appellant’s cross motion to, inter alia, amend its pleading, unanimously affirmed, without costs.

The motion court properly dismissed the counterclaims and third-party claims since Administrative Code of the City of New York § 11-409 (c) prohibits counterclaims in a tax foreclosure action brought pursuant to Administrative Code § 11-401 et seq.

Appellant cannot avoid the import of section 11-409 (c) by recharacterizing its counterclaims and third-party claims as defenses. Nor can it avoid the prohibition on counterclaims in this action by casting the claims as third-party claims against various city agencies. Furthermore, these were not true third-party claims as provided in CPLR 1007 since they were not brought against “a person not a party” to this action. Administrative Code § 11-409 (c) would be rendered meaningless if a party to a tax foreclosure action could interpose affirmative causes of action as third-party claims rather than as counterclaims.

Because denominating the counterclaims and third-party claims as defenses would not actually change their character, the motion court properly denied the cross motion. To the extent the third-party claims were brought against entities unrelated to the City, the motion court [*2] properly exercised its discretion in dismissing those claims ( see CPLR 1010).

We have considered appellant’s remaining contentions and find them unavailing. Concur—Tom, J.P., Sweeny, Renwick, Freedman and Manzanet-Daniels, JJ..