Order unanimously reversed on the law without costs, petition granted and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: After his property was sold at a foreclosure sale, petitioner commenced this proceeding seeking to set aside the judgment of foreclosure and sale on the ground that the County of Erie (County) failed to provide him with notice of the foreclosure sale. County Court denied the petition. We reverse.
Before property may be sold in a foreclosure sale, the owner is entitled to actual notice of the sale ( see, Matter of McCann v Scaduto, 71 N.Y.2d 164, 177). The petition alleges that the County mailed the notice to petitioner's former address, although petitioner's new address was a matter of public record. Because the County did not submit any evidence in response to the petition, the allegations of the petition must be taken as true ( see, Kissell v County of Erie, 138 A.D.2d 965, 965-966; Kornowski v County of Erie, 75 A.D.2d 1019). Those allegations, along with documentary evidence submitted by petitioner, demonstrate that petitioner was not provided with actual notice of the foreclosure sale, and thus the judgment of foreclosure and sale must be set aside. We remit the matter to Erie County Court to set reasonable conditions upon which petitioner may redeem his property.