| Matter of Aylward v City of Buffalo |
| 2012 NY Slip Op 09223 [101 AD3d 1743] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Diana Sachs Aylward et al., Appellants, v City of Buffaloet al., Respondents. |
—[*1] Bennett, Difilippo & Kurtzhalts, LLP, East Aurora (Joel R. Kurtzhalts of counsel), forrespondents-respondents.
Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), enteredNovember 18, 2011 in a proceeding pursuant to RPTL article 7. The order denied petitioners' motionto preclude an interior inspection of their homes.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordancewith the following memorandum: Petitioners commenced these proceedings seeking review of theirresidential real property tax assessments pursuant to RPTL article 7. They appeal from four ordersdenying their motions to preclude respondents from conducting interior inspections of their homes inorder to prepare a defense to the petitions. Petitioners contend that Supreme Court erred in requiringthem to move to preclude those inspections rather than requiring respondents to move to allow theinspections. We agree.
Discovery in RPTL article 7 proceedings is governed by CPLR 408, which requires a court's leaveto obtain formal disclosure beyond a notice to admit (see Matter of Wendy's Rests., LLC v Assessor, Town of Henrietta, 74AD3d 1916, 1917 [2010]). Here, the court failed to comply with CPLR 408 in orderingpetitioners either to move to preclude the demanded inspections or to have any objection theretodeemed waived. The court's error significantly altered the proof required on this issue and therebyenabled respondents to access the interior of petitioners' homes without having to show its need forsuch access. Indeed, respondents opposed the motions to preclude by submitting only an affidavit inwhich their attorney asserted that petitioners had presumptively consented to the interior inspections byhaving challenged their tax assessments and that the [*2]publiclyavailable information about the properties was insufficient to prepare an effective defense to thepetitions. The attorney, however, did not acknowledge that the interior details of the subject homescould have just as easily been obtained by way of a notice to admit (see CPLR 408; CPLR3123), a procedure that would not have required the leave of a court.
In sum, by proceeding in contravention of CPLR 408, the court improperly relieved respondents oftheir burden to make the required showing, such as by way of an appraiser's affidavit, that interiorinspections were necessary to prepare their defense (see generally Matter of Wendy's Rests.,74 AD3d at 1917). Moreover, by erroneously requiring petitioners to move to preclude, the court didnot properly evaluate the reasonableness of the inspections sought by respondents, i.e., the court didnot conduct the necessary Fourth Amendment analysis balancing respondents' need for interiorinspections against the invasion of petitioners' privacy interests that such inspections would entail (see Matter of Yee v Town of Orangetown,76 AD3d 104, 111-113 [2010], citing Schlesinger v Town of Ramapo, 11 Misc 3d 697, 699-700 [2006];see generally Camara v Municipal Court of City & County of San Francisco, 387 US 523[1967]). Under these circumstances, we reverse the orders and remit the matters to Supreme Court forfurther proceedings not inconsistent with our decision herein. Present—Centra, J.P., Fahey,Valentino and Martoche, JJ.