| Matter of Adams v Schoenstadt |
| 2008 NY Slip Op 09528 [57 AD3d 1073] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Virginia Adams et al., Appellants, v Richard S.Schoenstadt et al., as Board of Assessors of the Town of Schroon, et al.,Respondents. |
—[*1] Hacker & Murphy, L.L.P., Latham (Patrick L. Seely Jr. of counsel), for respondents.
Peters, J. Appeal from a judgment of the Supreme Court (Dawson, J.), entered September 6,2007 in Essex County, which, in a proceeding pursuant to CPLR article 78, partially grantedrespondents' motion to dismiss the amended petition.
Petitioners are owners of real property in the Town of Schroon, Essex County. They commencedthis proceeding against respondent Town of Schroon and its Board of Assessors, among others,seeking to nullify the Town's 2006 tax assessment on the ground that it was, among other things,nonuniform. Respondents moved to dismiss the amended petition pursuant to CPLR 3211 (a), 3212and 7804 (f). Supreme Court dismissed each of petitioners' claims challenging the uniformity of theassessments, finding that such claims must be brought in an RPTL article 7 proceeding, and dismissed,for lack of standing and subject matter jurisdiction, petitioners' claim that an incorrect equalization rate[*2]was employed in making the assessments.[FN1]As to petitioners' claim of favoritism on the part of respondents, Supreme Court determined thatpetitioners' allegations were sufficient to survive the motion to dismiss. Petitioners appeal, and weaffirm.
A proceeding pursuant to RPTL article 7 is the "exclusive remedy by which instances of illegality,overvaluation or inequality as to assessments may be asserted" (Kahal Bnei Emunim & TalmudTorah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 204 [1991]; see RPTL 700[1]; Matter of Averbach v Board of Assessors of Town of Delhi, 176 AD2d 1151, 1152[1991]). However, a CPLR article 78 proceeding is appropriate "where a party challenges a taxassessment as illegal, i.e., that the taxing authority exceeded its power to tax, or that the tax itself or themethod employed in taxing is unconstitutional" (Matter of Brooklyn Union Gas Co. v State Bd. ofReal Prop. Servs., 246 AD2d 898, 899 [1998]; see Matter of Cassos v King, 15 AD3d 758, 758 [2005]). With respectto the methodology exception, a CPLR article 78 proceeding is proper only if the challenge is basedupon the particular method employed in the assessment of several properties rather than theovervaluation or undervaluation of specific properties (see Matter of General Elec. Co. vMacIsaac, 292 AD2d 689, 691 [2002]; Matter of Averbach v Board of Assessors of Townof Delhi, 176 AD2d at 1152; Matter of Krugman v Board of Assessors of Vil. of Atl.Beach, 141 AD2d 175, 180 [1988], appeal dismissed 73 NY2d 872 [1989]).
Here, petitioners maintain that their claims fall within this methodology exception. They base theirargument on their expert's conclusion that, in calculating the coefficient of dispersion and the pricerelated differential of a sample of property sales between July 1, 2005 and June 30, 2006,[FN2]parcels were either overvalued or undervalued in respondents' assessment. Critically, however,petitioners have made no allegations regarding any specific defects in respondents' method ofassessment and, in fact, have failed to even identify a particular "methodology" used. While they claimthat they need not point to any particular "method" employed by respondents in order to pursue theirclaims of inequality through a CPLR article 78 proceeding, but instead may rely upon evidenceestablishing a general lack of uniformity, petitioners fail to cite to any authority supporting such anassertion.[FN3]Indeed, it is firmly [*3]established that " '[m]ere allegations,unsupported by evidentiary matter, that the attack is on the methods employed rather than individualevaluations, are not enough to relieve [petitioners] of the obligation to pursue their relief via theprovisions of [RPTL] article 7' " (Matter of Krugman v Board of Assessors of Vil. of Atl.Beach, 141 AD2d at 180, quoting Samuels v Town of Clarkson, 91 AD2d 836, 837[1982]; see Matter of Board of Mgrs. of Greens of N. Hills Condominium v Board of Assessors ofCounty of Nassau, 202 AD2d 417, 419-420 [1994], lv denied 83 NY2d 757 [1994]).
In our view, a broad claim of inequality will not suffice because, by "fail[ing] to identify with anyparticularity any 'method' of assessment which [they are] attacking[,] any review of the assessmentswould necessitate inquiry into the Assessor's mental processes, judgments, and observations, an inquirylimited to [RPTL] article 7 proceedings" (Abrams v Long Is. Light. Co., 117 AD2d 764, 765[1986], appeal dismissed 68 NY2d 752 [1986], lv denied 69 NY2d 601 [1986];see Matter of Board of Mgrs. of Greens of N. Hills Condominium v Board of Assessors of NassauCounty, 202 AD2d at 419-420; see also C.H.O.B. Assoc. v Board of County of Nassau,45 Misc 2d 184, 187 [Sup Ct, Nassau County 1964], affd without op 22 AD2d 1015 [1964],affd 16 NY2d 779 [1965]). Thus, as petitioners have failed to provide sufficient proof todemonstrate that their challenge to the assessment is based upon any methodology employed byrespondents, Supreme Court properly concluded that the sole remedy for their claims of inequality wasby way of an RPTL article 7 proceeding (see Matter of M. Kaufman 42nd St. Co. v Board ofAssessors of Atl. Beach, 273 AD2d 239, 239 [2000]; Abrams v Long Is. Light. Co., 117AD2d at 765). Further, as the instant proceeding was not commenced within the 30-day periodmandated by RPTL 702 (2), we are unable to consider it as one brought pursuant to RPTL article 7(see Matter of Cassos v King, 15 AD3d at 759; Matter of Bassett Mtn. Recreation Ctr. vTown of Jay Bd. of Assessors, 232 AD2d 934, 934 [1996]).
Petitioners' claim that they were denied due process is similarly unavailing. In the context of taxassessments, due process requires an opportunity for the taxpayer's grievance to be heard (see Matter of Niagara Mohawk Power Corp. vTown of Bethlehem, 16 AD3d 888, 890 [2005], affd 6 NY3d 744 [2005]). Here,petitioners had the opportunity to challenge their assessments by filing a complaint with the board ofassessment review (see RPTL 524, 525) or commencing an RPTL article 7 proceeding(see RPTL 700, 724).
In light of our determination, petitioners' remaining claims have been rendered academic.
Cardona, P.J., Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: Petitioners do not challenge theequalization rate determination in their brief on appeal and, therefore, we deem the issue abandoned(see Rossi v Attanasio, 48 AD3d1025, 1027 n 3 [2008]).
Footnote 2: In light of our decision, we need notaddress whether petitioners relied upon sales during the proper time period.
Footnote 3: To the contrary, in cases permittinga CPLR article 78 challenge to a municipality's tax assessment based on an allegedly impermissiblemethodology, petitioners have identified the specific method employed by the municipality (see e.g.Matter of Dudley v Kerwick, 52 NY2d 542 [1981]; Matter of Resnick v Town of Canaan, 38 AD3d 949 [2007]; Matter of Montgomery v Board of AssessmentReview of Town of Union, 30 AD3d 747 [2006]; Matter of Brooklyn Union Gas Co. vState Bd. of Real Prop. Servs., supra; Matter of Adams v Welch, 188 AD2d 784 [1992];Matter of Averbach v Board of Assessors, supra; Matter of Krugman v Board ofAssessors, supra; Matter of 22 Park Place Coop. v Board of Assessors of County ofNassau, 102 AD2d 893 [1984]).