| Matter of Greenfield v Town of Babylon Dept. of Assessment |
| 2010 NY Slip Op 06798 [76 AD3d 1071] |
| September 28, 2010 |
| Appellate Division, Second Department |
| In the Matter of Steven Greenfield, Appellant, v Town ofBabylon Department of Assessment et al., Respondents. |
—[*1] Scott DeSimone, Peconic, N.Y., for respondents Town of Babylon Department ofAssessment and Michael J. Bernard, as Assessor of the Town of Babylon. Guercio & Guercio, LLP, Farmingdale, N.Y. (Gary L. Steffanetta of counsel), for respondentBabylon Union Free School District.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of ahearing officer, dated January 20, 2009, which denied the petitioner/plaintiff's applicationpursuant to Real Property Tax Law article 7 to reduce the tax assessment of his real property fortax year 2008/2009, and action for a judgment, among other things, declaring that the method oftax assessment imposed is invalid and unconstitutional, the petitioner/plaintiff appeals from ajudgment of the Supreme Court, Suffolk County (Jones, Jr., J.), dated June 9, 2009, which, uponan order of the same court also dated June 9, 2009, granting the motion of the Town of BabylonDepartment of Assessment and Michael J. Bernard, as Assessor of the Town of Babylon, todismiss the petition/complaint, denied the petition and dismissed the proceeding/action.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the cause of action seeking a judgment declaring that the method of assessment wasunconstitutional; as so modified, the judgment is affirmed, with costs to the petitioner/plaintiff,the cause of action seeking a judgment declaring that the method of assessment wasunconstitutional is reinstated, the order is modified accordingly, and the matter is remitted to theSupreme Court, Suffolk County, for further proceedings on that cause of action.
Steven Greenfield owns certain residential real property located in the Town of Babylon. Forthe 2008/2009 tax year, the Town of Babylon Department of Assessment assessed the subjectproperty at the sum of $9,590. Greenfield filed a grievance with the Town's Board of AssessmentReview, alleging an excessive and unequal assessment, and seeking reduction of the assessment.After his grievance was denied, Greenfield commenced a small claims assessment review(hereinafter SCAR) proceeding, challenging the assessment as excessive and unequal. After aninformal hearing, the hearing officer denied [*2]the SCARpetition, finding that Greenfield failed to prove that the assessed valuation exceeded the fullvalue of his property. The hearing officer also found that Greenfield failed to establish that hisproperty was subject to an unequal assessment because the assessments for the six comparableproperties he submitted constituted an insufficient sample.
Greenfield then commenced this hybrid proceeding and action, seeking a judgment annullingthe hearing officer's determination and reducing the assessment, declaring the method ofassessment used by the Town of Babylon Department of Assessment invalid andunconstitutional, and enjoining Michael J. Bernard, as Assessor of the Town of Babylon, and theTown of Babylon Department of Assessment (hereinafter together the Assessor) from assessingproperties without taking into consideration the increase in their value due to substantialimprovements. The petition/complaint alleged that the hearing officer's determination wasarbitrary and capricious and based on an error of law, and that the Assessor was engaged in asystematic practice of failing to reevaluate the actual value of properties whose values hadincreased due to substantial improvements, which discriminated against owners of propertieswho had not upgraded, in violation of state and federal equal protection guarantees and 42 USC§ 1983. The petition/complaint mistakenly stated that it was challenging the assessment forthe 2006/2007 tax year, but also referenced the valuation date of July 1, 2007, which was thevaluation date for the 2008/2009 tax year.
The Assessor moved to dismiss the petition/complaint on the grounds of lack of subjectmatter jurisdiction, untimeliness of the grievance, SCAR petition, and petition/complaint, andfailure to name a necessary party, namely the Village of Babylon. The Supreme Court granted themotion, and issued a judgment denying the petition and dismissing the proceeding/action,holding that Greenfield's challenges to the assessment for the 2006/2007 tax year and themethodology of the Assessor were untimely, that the Village of Babylon was a necessary party,and that the determination of the hearing officer was supported by a rational basis. Greenfieldappeals, and we modify.
The Supreme Court should have disregarded the reference in the petition/complaint to theincorrect tax year as it was an obvious mistake, and to disregard it would not prejudice asubstantial right of any party (see CPLR 2001, 3026; MacLeod v County of Nassau, 75 AD3d 57 [2010]). Moreover,Greenfield asserted timely challenges to the assessment for the 2008/2009 tax year at each stageof the process (see RPTL 730 [3]; 736 [2]; CPLR 217 [2]), and then timely challengedthe Assessor's methodology in this proceeding (see Matter of Montgomery v Board of Assessment Review of Town ofUnion, 30 AD3d 747 [2006]; Matter of DeLeonardis v Assessor of City of MountVernon, 226 AD2d 530 [1996]). In any event, Greenfield also asserted a claim pursuant to 42USC § 1983, which has a three-year statute of limitations (see CPLR 214;Wilson v Garcia, 471 US 261 [1985]; Corvetti v Town of Lake Pleasant, 227AD2d 821, 823 [1996]; see also Allegheny Pittsburgh Coal Co. v Commission of WebsterCty., 488 US 336, 345 [1989]; Matter of Resnick v Town of Canaan, 38 AD3d 949, 952-953[2007]; Matter of Krugman v Board of Assessors of Vil. of Atl. Beach, 141 AD2d 175[1988]). Consequently, the matter was timely commenced.
With respect to the Supreme Court's finding that the petition/complaint failed to name anecessary party, Greenfield did not seek any relief from the Village and only commenced theSCAR proceeding against the Town of Babylon Department of Assessment (see RPTL736 [2]). In addition, no evidence was submitted to establish that the Village's interest would beaffected by the outcome of this proceeding requiring dismissal for failing to name it as a party(see CPLR 1001 [a]; Matter ofTransGas Energy Sys., LLC v New York State Bd. on Elec. Generation Siting & Envt., 65AD3d 1247, 1249 [2009]; cf.Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d 725 [2008]; Matter of Haddad v City of Hudson, 6AD3d 1018, 1019 [2004]).
However, the Supreme Court properly granted that branch of the Assessor's motion whichwas to dismiss so much of the petition/complaint as sought to annul the hearing officer'sdetermination in the SCAR proceeding. When such a determination is contested, the court's roleis limited to ascertaining whether there was a rational basis for that determination (see Matter of Meirowitz v Board ofAssessors, 53 AD3d 549 [2008]; Matter of Gershon v Nassau County Assessment Review Commn., 29AD3d 909 [2006]). Here, the evidence, which included comparable recent sales andGreenfield's listing of the subject property [*3]for sale in March2007 at a price in excess of the full market value as determined by the Assessor, provided arational basis for the hearing officer's determination that Greenfield failed to establish that theassessed valuation of his property exceeded its full value (see RPTL 729 [2] [a]; Matter of Gershon v Nassau CountyAssessment Review Commn., 29 AD3d 909 [2006]).
As to Greenfield's claim of an unequal assessment, he was required to prove that his propertywas "assessed at a higher percentage of full market value than either (1) the average of all otherproperty on the assessment roll or (2) the average of residential property on the assessment roll"(Matter of Sofia v Assessor of Town of Eastchester, 294 AD2d 509, 509 [2002] [internalquotation marks omitted]; see RPTL 729 [4]; Matter of Pace v Assessor of Town ofIslip, 252 AD2d 88, 90 [1998]). In such a challenge, the homeowner must first prove the fullmarket value of his or her own property and then adduce proof of the appropriate percentage ofvalue to be used to determine the correct assessment (see Matter of Pace v Assessor of Townof Islip, 252 AD2d 88, 90 [1998]). That proof may consist of the equalization rate orresidential assessment ratio (hereinafter the RAR) established for the assessing unit, theassessor's statement of percentage, or the assessments of comparable residential properties(see RPTL 732 [2]; Matter of Pace v Assessor of Town of Islip, 252 AD2d 88, 90[1998]).
Here, Greenfield submitted the applicable RAR, which, by definition, is the medianpercentage of value applied to residential property by the assessing unit during the preceding year(see Matter of Pace v Assessor of Town of Islip, 252 AD2d at 91). Notwithstanding suchproof, Greenfield failed to establish that the full market value of his property, multiplied by theapplicable RAR, was less than the assessed valuation of his property (id. at 93).
Finally, since the merits of Greenfield's constitutional challenge to the Assessor'smethodology cannot be determined at this stage of the proceeding, we remit the matter to theSupreme Court, Suffolk County, for further proceedings on that cause of action. Covello, J.P.,Santucci, Balkin and Austin, JJ., concur.