This matter began by service of a summons and verified complaint filed by plaintiff on April 16, 1997. The plaintiff’s complaint alleged that plaintiff, on or about September 11, 1991, entered into a retail installment contract with the Hannolds for the purchase of a mobile home. The plaintiff provided financing to the defendant Hannolds in the amount of $25,086.50. Under the terms of this contract, the plaintiff retained a security interest in defendants Hannolds’ mobile home to serve as collateral for the repayment of the amount financed. The plaintiff perfected its security interest in accordance with the Uniform Commercial Code. The retail installment contract specifically provided that the mobile home could be repossessed if the defendants Hannold defaulted in repayment. On July 11, 1996, the defendants Hannold failed to pay the installments due and an accelerated payoff balance of $21,286.14 became due and owing to the plaintiff. Plaintiff moved for an order to take immediate possession of the mobile home and for a money judgment in the amount owed.
On August 7, 1997, the plaintiff moved the court by order to show cause for an order granting permission for joinder to add the County of Sullivan as a party defendant in the action, granting an order of seizure for the mobile home, and temporarily restraining the County of Sullivan from removing the mobile home, or from selling or transferring the mobile home through a tax sale. On August 14, 1997 the defendant County of Sullivan, by affirmation of David M. Gold, Esq., moved the court requesting that the order to show cause filed by the plaintiff be amended by removing the temporary restraining order against the defendant County of Sullivan as they had not yet been joined as a necessary party defendant. Subsequently, on August 19, 1997 the plaintiff filed an amended order to show cause requesting the same relief, deleting the paragraph regarding the defendant County of Sullivan and ordering that the defendants Hannold be restrained from removing the mobile home or from taking any action which would adversely affect the plaintiff’s security interest. Accompanying the order to show cause was the affidavit in support of the application for joinder by Anthony R. Hanley, Esq. on behalf of the plaintiff. Said affidavit set forth facts alleging that, on or about August 30, 1996, the plaintiff had received “notice of expiration OF REDEMPTION PERIOD FOR LAND SOLD FOR TAXES” from the County of Sullivan pertaining to defendants Hannolds’
It was sometime after this point that the plaintiff became aware that the County of Sullivan intended to assert a priority right to the mobile home as realty. The County’s assertion was based on their belief that the mobile home should be classified as real property and therefore subject to sale as part of the real estate at the tax sale. The plaintiff maintained that the mobile home was personalty and therefore not part of the real estate subject to sale pursuant to the tax sale.
As a result, the plaintiff, on August 25, 1997, filed with the court a supplemental affidavit in support of the application for an order of seizure by Robert M. Rickert, plaintiff’s vice-president and a supplemental affidavit in support of an order of seizure by Michael Wilsch, a collector/adjuster employed by Tammac Corporation and specializing in the coordination of repossession of mobile homes. The affidavit of Michael Wilsch supported the plaintiff’s position that the mobile home remained mobile in nature and had at no time become permanently affixed to the real estate. The affidavit of Robert Rickert supported the plaintiffs position that repossession was the appropriate remedy.
On August 27, 1997, the defendant, County of Sullivan, by way of affidavit in partial opposition to the order to show cause,
“12. ‘Real property’, ‘property’ or ‘land’ mean and include * * *
“(g) Forms of housing adaptable to motivation by a power connected thereto, commonly called ‘trailers’ or ‘mobile homes’, which are or can be used for residential, business, commercial or office purposes, except those (1) located within the boundaries of an assessing unit for less than sixty days or (2) unoccupied and for sale.”
It is the defendant County of Sullivan’s opinion that this statutory provision is controlling. In the alternative, the County argues that should it be found that section 102 (12) (g) is not controlling that there remains a question as to the permanency of the mobile home which would make an order of seizure inappropriate.
By decision and order dated September 23, 1997, this court granted plaintiffs motion for joinder of the County of Sullivan and found that an order of seizure pursuant to CPLR 7102 (a) applied only to chattels. The court further found that a determination as to the status of the mobile home as personalty subject to seizure or realty could not be adequately established upon the facts before the court. Therefore all parties were instructed to appear before the court for a hearing on the issue of the permanency of the mobile home and a final determination regarding the order of seizure. (As a result of the joinder of the County of Sullivan a supplemental summons and verified complaint was filed and the defendant County of Sullivan filed its answer dated October 17, 1997. The plaintiff filed a verified answer on November 3, 1997 and a verified reply to the amended answer on December 1, 1997.) Prior to the hearing, and as a direct result of the second filing for bankruptcy
Oral arguments were held on October 8, 1997 with Ira J. Cohen, Esq. present on behalf of the defendant County of Sullivan. Defendants Hannold offered no opposition to the withdrawal of plaintiff’s motion for seizure. Plaintiff was represented by teleconference with Anthony R. Hanley, Esq. The defendant County of Sullivan took the position that the plaintiff acted improperly in using “self-help” in securing the mobile home during the pendency of the motion for an order of seizure. The plaintiff alleges that it was their motion for an order of seizure and once no longer needed it was their prerogative to withdraw it.
By decision and order of this court dated October 9, 1997 the court held that it is within the court’s discretion to grant leave to withdraw a motion once the motion has been fully submitted. Such decisions are made after an analysis of the movant’s motives in withdrawing the motion and the disadvantages to the opposing party. The court further opined that the issue on a motion for an order of seizure is: who has a superior right to the chattel and whether or not the chattel is being wrongfully held. The court granted the plaintiff’s motion to withdraw holding that a “Motion for an Order of Seizure on property which has already been seized, albeit by the Plaintiff, renders the Motion for an Order of Seizure moot.”
On November 17, 1997, the defendant County of Sullivan moved this court by notice of motion and affirmation of David M. Gold, Assistant County Attorney, for an order granting the County of Sullivan the following relief: summary judgment dismissing the complaint; granting summary judgment as to liability on the first and third counterclaims which requested damages for improper removal of the mobile home; severing the action as to the second counterclaim which requested sanctions against the plaintiff for improper removal of the mobile home; continuing the action for the purposes of determining damages on the first and third counterclaims; and determining liability and damages on the second counterclaim.
On or about December 1, 1997, the plaintiff filed an affidavit by Anthony R. Hanley, Esq., in opposition to the defendant’s summary judgment motion. The plaintiff’s position is that the mobile home was at all times personal property and that the mobile home’s status as personalty has never changed. In support of this position, the plaintiff filed the affidavit of Terry Watson, a coordinator for the removal of repossessed mobile homes employed by the plaintiff. Mr. Watson’s affidavit detailed the removal of the mobile home which, according to the plaintiff, was easily removed from the property and at all times remained mobile. The mobile home was at no time connected to the real property by foundation or otherwise. It was therefore plaintiff’s position that the mobile home never became affixed to the real property and as such remained personal property. It is further alleged that any tax lien the County may have extends only to real property and not to personalty.
By decision and order of this court entered on January 23, 1997, the defendant’s motion for summary judgment was denied. The court held that a triable issue of fact existed regarding the status of the mobile home as real property or personal property. The parties were further directed to appear before the court for an evidentiary hearing regarding this issue. On February 18, 1998, the County filed a notice of appeal regarding this decision.
On March 12, 1998, the evidentiary hearing was held. The defendant County of Sullivan appeared and was represented by David Gold, Esq. The plaintiff appeared and was represented
On cross-examination the County questioned Mr. Gaynor regarding the period of time it would take the tires to reach the stage of dry rot that he had witnessed at this location. Mr. Gaynor testified that tires are recycled in the mobile home industry and therefore it is difficult to tell how old these tires were. Mr. Gaynor stated that sometimes even tires on new mobile homes will show signs of dry rot due to this practice of recycling the tires. Mr. Gaynor also testified that the axles can also be recycled but it was his opinion that the axles in this particular mobile home were broken upon delivery of the home to that site. The defendant also questioned Mr. Gaynor regarding a set of wooden steps which were pictured at the rear of the mobile home. Mr. Gaynor testified that the steps were not
At this point, Mr. Gold renewed his motion for summary judgment and Mr. Hanley requested that the court visit the site and/or view the mobile home. Mr. Gold also moved the court for permission to submit a memorandum of law and that request was granted. On or about March 24, 1998, the court received a memorandum of law from the defendant County and thereafter the plaintiff filed a memorandum of law dated March 27, 1998. The matter is now fully submitted.
It is clear that mobile homes located on real property may be assessed to the land owner for tax assessment purposes under section 102 (12) (g) of the Real Property Tax Law. It would appear that, if in fact all mobile homes were “real property”, there would be no need to enact a specific section which would define them as such. Further, one may conclude that a “mobile” home should not lose its identity as personal property until such time as it becomes so affixed to the real property as to lose its separate identity and its “mobile” character. In this particular case, based upon the facts as established at the evidentiary hearing before this court, the testimony clearly established that the mobile home did not become so affixed to the real estate as to lose its personal property identity. Therefore, it did not become classified as “real property” for purposes of establishing who had a prior security interest in the mobile home even though under the statutory definition it could be assessed for tax purposes as real property as long as it remained stationary upon the taxed parcel.
The Real Property Tax Law specifically gave the taxing agencies the authority to tax mobile homes as a part of the real property for assessment purposes. As previously set forth in my decision of January 23, 1998, this does not give the taxing agency carte blanche to take possession of all mobile homes upon default in payment of land taxes. Although section 102 (12) (g) of the Real Property Tax Law defines a mobile home as real property, this statutory definition has been interpreted by the courts to mean that a mobile home is classified as real property for tax assessment purposes. (Casaburi v Dow, 100 AD2d 693 [3d Dept 1984]; Reddick v County of Chemung, 114 AD2d 559 [3d Dept 1985].) In Casaburi the Court specifically cited to the legislative intent of section 102 (12) (g) indicating that the legislative purpose of this statute was to ensure that mobile homeowners receiving the benefit of public services from municipalities where their mobile homes are located
This court finds the County’s position that this is not a common-law issue but strictly a statutory issue to be unpersuasive. Clearly there exists a statute which defines a mobile home as real property for tax assessment purposes. However, it is equally clear that the case law has repeatedly stated that mobile homes may be defined as real property for “assessment” purposes. This would make sense, particularly as Casaburi (supra) points out, when the municipality is losing money providing services to the mobile homeowner who is not paying the appropriate tax. However, this would not make sense in respect to the fact situation before this court where the ultimate determination of this mobile home as real property would effectively eliminate the prior lienholder’s security interest in the mobile home which was treated and classified as chattel since inception. To rule that this mobile home is real property subject to the tax sale even though not permanently affixed to the property would be to force the plaintiff either to lose its security interest in the mobile home or to pay the taxes on the real property when it had no vested interest in the real property. This is juxtaposed to any other situation involving tax foreclosures wherein the mortgagee would have an interest in both the real estate and the home located thereon. Certainly under those circumstances a tax foreclosure would wipe out the mortgagee’s interest if they failed to come forward. However, in the case before this court, the plaintiff had a secured interest in the mobile home alone and upon notification of the tax delinquency it moved to repossess its property.
The County further relies on section 1180 of the Real Property Tax Law stating that the plaintiff had no right to remove the mobile home and therefore the removal was in violation of this section which states that a person shall not despoil any lands which are subject to a delinquent tax lien. The court
This has led this court to the conclusion that a mobile home, particularly a separately assessed mobile home, remains personal property and does not become real property unless and until it is so permanently affixed to the real property as to despoil the lands simply by its attempted removal. This is not the case before us. The mobile home in question was one in which the plaintiff had a properly filed security interest since the initial transaction with the Hannolds. The testimony has clearly established that the mobile home retained its mobile character and was easily removed from the property within a matter of hours and with little or no damage to the real estate. As such, it is the opinion of this court that the mobile home is personal property which rightfully belongs to the plaintiff and which was rightfully repossessed by it upon notification that the property on which the mobile home was located was to be sold at a tax sale. As such, the plaintiff now has rightful possession of the mobile home and may do with it as it wishes. This court further finds that should the Legislature find that they wish to delineate and define all mobile homes as real property for tax assessment as well as all other purposes regardless of the manner in which they are affixed to the real estate it is clearly within their power to do so. It is the opinion of this court that the law as currently written does not do so.