| Matter of Manouel v Board of Assessors |
| 2013 NY Slip Op 07486 [111 AD3d 735] |
| November 13, 2013 |
| Appellate Division, Second Department |
| In the Matter of Mehran Manouel et al.,Appellants, v Board of Assessors et al.,Respondents. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Jackie L. Gross of counsel), forrespondents.
In a proceeding pursuant to CPLR article 78 to review a determination of a SmallClaims Tax Assessment hearing officer dated December 17, 2010, which denied thepetitioners' application for small claims assessment review pursuant to Real Property TaxLaw article 7, the petitioners appeal from an order and judgment (one paper) of theSupreme Court, Nassau County (Brandveen, J.), dated December 16, 2011, which, interalia, denied the petition and dismissed the proceeding.
Ordered that the order and judgment is affirmed, with costs.
The property in question was occupied by the mother of one of the petitioners, andthe mother did not pay rent. To qualify for small claims assessment review, the propertyat issue must be, among other things, "owner-occupied" (RPTL 730 [1] [b] [i]). At thehearing on the petitioners' application for small claims assessment review, a jurisdictionalobjection was raised on the ground that the property was not owner-occupied. Thatobjection was sustained, and the application was denied.
Where statutory language is clear and unambiguous, a reviewing court may notdepart from its plain meaning (see Pultz v Economakis, 10 NY3d 542, 547 [2008]; Matter of Brown v New York StateRacing & Wagering Bd., 60 AD3d 107, 115 [2009]). In this case, pursuant tothe plain meaning of RPTL 730 (1) (b) (i), the owners did not reside at the property.
In support of their claim that the property satisfied the requirements for small claimsassessment review, the petitioners cite Matter of Masters v Board of Assessors(188 AD2d 471 [1992]). In that case, the owner was attempting to sell the property and,rather than leave it vacant, arranged for his father-in-law to live there rent-free until thesale of the property. Since the father-in-law's stay on the property was clearly temporary,the property did not lose its owner-occupied character (see id. at 472; see also Moreno v Shanker, 93AD3d 829, 830 [2012]).[*2]
In the instant case, on the other hand, there is noevidence that the mother's residence at the property was temporary. Accordingly, theadministrative determination denying the petitioners' application for small claimsassessment review was not arbitrary and capricious, or affected by an error of law (see Matter of Sass v Town ofBrookhaven, 73 AD3d 785, 788 [2010]). Therefore, the Supreme Courtproperty denied the petition and dismissed the proceeding. Austin, J.P., Sgroi, Cohen andHinds-Radix, JJ., concur.