| Regional Economic Community Action Program, Inc. v Enlarged City SchoolDist. of Middletown |
| 2010 NY Slip Op 09117 [79 AD3d 723] |
| December 7, 2010 |
| Appellate Division, Second Department |
| Regional Economic Community Action Program, Inc.,Appellant, v Enlarged City School District of Middletown,Respondent. |
—[*1] Donoghue, Thomas, Auslander & Drohan, LLP, Hopewell Junction, N.Y. (Daniel Petigrow andNeelanjan Choudhury of counsel), for respondent.
In an action for money had and received, the plaintiff appeals from a judgment of the SupremeCourt, Orange County (Ritter, J.), entered December 16, 2009, which, upon an order of the samecourt dated October 13, 2009, inter alia, denying its motion for summary judgment and granting thatbranch of the defendant's cross motion which was for summary judgment dismissing the complaint, is infavor of the defendant and against it dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff, Regional Economic Community Action Program, Inc. (hereinafter RECAP), is acharitable corporation located in the City of Middletown. In 2004, after the City, the entity responsiblefor listing certain RECAP properties as fully taxable on the tax assessment rolls used by both the Cityand the defendant, Enlarged City School District of Middletown (hereinafter the District), deniedRECAP's applications for tax exemptions pursuant to RPTL 420-a, RECAP commenced a CPLRarticle 78 proceeding against the City, seeking to review its determination. In 2008 the matter camebefore the Court of Appeals, which ruled that the RECAP properties at issue were tax-exemptpursuant to RPTL 420-a (1) (a) (see Matterof Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown,10 NY3d 205, 215-217 [2008]). The City agreed to refund the real property taxes it hadreceived from RECAP for the tax year 2004/2005.
In January 2009, RECAP similarly sought repayment from the District for school taxes paid from2004 through 2007. When the District refused to refund the money, RECAP commenced this actionagainst it for money had and received.
The plaintiff moved for summary judgment, and the defendant cross-moved, inter alia, for summaryjudgment dismissing the complaint prior to the completion of discovery. Finding that RECAP failed topresent a notice of claim to the District pursuant to Education Law § 3813 (1), the SupremeCourt denied RECAP's motion and granted that branch of the District's cross motion which was forsummary [*2]judgment dismissing the complaint. RECAP appeals.
We affirm, but on a different ground (see Menorah Nursing Home v Zukov, 153 AD2d13, 19 [1989]). "[I]t is incumbent upon the taxpayer to establish appropriate legal protest prior to or atthe time of payment as a prerequisite to recovery in an action seeking refunds" (Corporate Prop.Invs. v Board of Assessors of County of Nassau, 153 AD2d 656, 660 [1989], affd 80NY2d 961 [1992]; see Video Aid Corp. v Town of Wallkill, 85 NY2d 663, 666 [1995];City of Rochester v Chiarella, 58 NY2d 316, 323 [1983]). RECAP failed to satisfy thisrequirement. Although RECAP states that it submitted a protest letter with each tax payment to theDistrict during the relevant period, the record reflects that the letter only addressed city tax payments,as opposed to District tax payments. Moreover, the fact that RECAP commenced the CPLR article 78proceeding against the City did not put the District on notice of the involuntary nature of the payments,as the District was not a party to that proceeding (see Matter of Tennessee Gas Pipeline Co. vTown of Chatham Bd. of Assessors, 239 AD2d 831, 833 [1997]).
In light of our determination, we need not address the parties' remaining contentions. Rivera, J.P.,Leventhal, Hall and Roman, JJ., concur.