SUPREME COURT: COUNTY OF CHAUTAUQUA
CLYDE B. RODGERS
vs Index #H-12020
GENE L. MACK
FOLEY, FOLEY & PASSAFARO
(Albert W. Foley, Esq.
of Counsel) for Plaintiff
JOHN P. RICE, III, ESQ.
Attorney for Defendant
DECISION AND ORDER
The motion of plaintiff for an order restraining and
enjoining defendant, pending the determination of issues
in this action from any entry onto plaintiff's property
on Boutwell Road, for the purpose of cutting down and/or
removing trees from the Boutwell Road property, is
The federal tax liens against Roger Crumb takes
precedence over defendant's timber contract. The liens
were properly filed and on record; the liens attach on
property and rights to property real or personal. See 26
USC 6321. Also US v BROSNAN 36 US 237, 4 L Ed2d 1192.
Once a government tax lien is properly filed, no
subsequent recorded lien or claim may prevail against it;
and, the federal tax lien is not limited to property
owned by the taxpayer at the time it arises. See
HOUSEHOLD COAL and OIL DISTRIBUTORS INC. v NEDC, Inc 234
Article 10-A of the Lien Law (Lien Law 240 et seq),
the enactment of the Uniform Federal Tax Lien
Registration Act, provides for the filing of Federal Tax
Liens in New York.
Here, the federal tax liens were filed in accordance
with the lien law and served on Roger Crumb, the
landowner, before the timber contract was signed and
filed with the Clerk. The defendant could have
discovered the liens if he had checked the records.
Furthermore, there is ample case law and statutory
authority that the contract for timber rights is a sale
of goods and not property rights. See 2-107 of the UCC.
The UCC provides that timber to be cut, is a contract for
the sale of goods. See 93 NY Jur2d Sales and Exchanges of
Personal Property, p 109.
The Federal Tax Lien Act of 66 conforms lien
provisions of IRC to UCC.
The interest in question must be perfected before
the filing of the tax lien. See 93 NY Jur2d Sales and
Exchanges of Personal Property, 38, 39, 56.
See OUTDOOR SCENES, INC. v ANTHONY GRACE & SONS, INC
443 S2d 583. Also, MARINE MIDLAND v GLEASON 62 AD2d 429.
The Court takes judicial notice of a Temporary
Restraining Order against Roger Crumb issued by this
Court prior to March 1994, restraining him from
transferring or encumbering any of his property during
his matrimonial dispute. He should not have entered into
the timber contract with defendant.
The Court declares that as to plaintiff, the timber
contract is void and of no effect.
Defendant has a right of action against Roger Crumb;
he has no right to the timber on plaintiff's property.
Counsel are directed to submit a proposed scheduling
order for the trial on the issue of damages, if any.
This is the Decision and Order of this Court. No
further Order shall be necessary, but, plaintiff may
submit a more definitive order setting forth the papers
on which this decision is based.
Dated: November , 1995
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1995, and
duly entered in the office of the Clerk of the County of
Chautauqua on the same date.