| Matter of Pettersen v Town of Fort Ann |
| 2010 NY Slip Op 03026 [72 AD3d 1322] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Robert Pettersen et al., Respondents, v Town ofFort Ann et al., Appellants. |
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Garry, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered December 15,2008 in Washington County, which, in a proceeding pursuant to CPLR article 78, deniedrespondents' motion to dismiss the petition.
Petitioners are the owners of lakefront properties located within the Town of Fort Ann,Washington County. In May 2005, petitioners commenced this proceeding pursuant to CPLRarticle 78 challenging the actions of respondents in allegedly contracting for the selectivereassessment of lakefront parcels and incorporating these values within the 2005 tax roll,resulting in an allegedly inequitable apportionment of the total tax burden within the Town. Thepetition seeks several enumerated forms of declaratory and injunctive relief, essentially declaringthe reassessment methodology and the resulting 2005 tax roll unlawful, vacating the tax roll andenjoining its use, remitting for a new tax roll, and awarding costs and disbursements for theproceeding. In February 2008, respondents moved to dismiss the petition on the basis that thetwo local school districts and Washington County were necessary parties to the proceeding, buthad not been joined. Supreme Court denied the motion. Respondents appeal.
We do not reach the merits of the appeal due to procedural infirmities. No appeal as of [*2]right lies from a nonfinal order in a CPLR article 78 proceeding(see CPLR 5701 [b] [1]; Matterof Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City ofSaratoga Springs, 46 AD3d 979, 981 n 1 [2007], lv denied 10 NY3d 706[2008]). The challenged order is nonfinal (see Matter of Hebel v West, 25 AD3d 172, 175 n 1 [2005], lvdenied 7 NY3d 706 [2006]), but respondents neither sought nor were granted leave to appeal(see CPLR 5701 [c]). Moreover, the record indicates that the issues presented have beenrendered moot by a town-wide reassessment undertaken in 2009. As petitioners expressly seekno refund, the declaratory and injunctive relief that they seek will not affect the substantiverights of the parties (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980];Matter of King v Jackson, 52 AD3d974, 975 [2008]). Thus, we find no reason to exercise our authority to grant leave to appealsua sponte (compare Matter of Elcor Health Servs. v Novello, 295 AD2d 772, 773 n 2[2002], affd 100 NY2d 273 [2003]; Matter of Swartz v Wallace, 87 AD2d 926,927 [1982]) and conclude that the appeal must be dismissed (see Matter of Dillon All Pointsv New York State Tax Commn., 125 AD2d 848, 849 [1986]).
Mercure, J.P., Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the appeal isdismissed, without costs. [Prior Case History: 23 Misc 3d 549.]