| Matter of Jonsher Realty Corp./Melba, Inc. v Board ofAssessors |
| 2014 NY Slip Op 04195 [118 AD3d 787] |
| June 11, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jonsher Realty Corp./Melba, Inc.,Respondent, v Board of Assessors et al., Appellants. |
Carnell T. Foskey, County Attorney, Mineola, N.Y. (Dennis J. Saffran and Daniel K.Valentino of counsel), for appellants.
Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (DaleAllinson of counsel), for respondent.
In a proceeding pursuant to CPLR article 78, in effect, in the nature of mandamus tocompel the calculation of transition assessments for two parcels of real property for taxyear 2007/2008 and thereupon to compel the refund of overpayments of taxes, the appealis from a judgment of the Supreme Court, Nassau County (Adams, J.), dated June 13,2012, which granted the petition and directed the calculation of the transitionassessments and the issuance of an appropriate refund.
Ordered that the judgment is reversed, on the law, with costs, the petition is denied,and the proceeding is dismissed.
The petitioner comprises the owner and lessee of two parcels of real property in theTown of Hempstead. The parcels were the subject of previous proceedings pursuant toRPTL article 7 challenging the assessments for the tax years 1998/1999 through2006/2007. Those proceedings were consolidated, after which the Supreme Courtgranted the RPTL article 7 petition, and directed a reduction of the assessments andrefund of overpayments, a determination that we affirmed on appeal (see Matter of Rainbow Diner vBoard of Assessors, 71 AD3d 901 [2010]).
The petitioner thereafter commenced this proceeding pursuant to CPLR article 78, ineffect, in the nature of mandamus, to compel the Board of Assessors and/or the Assessorof the County of Nassau and the Board of Assessment Review (hereinafter collectivelythe appellants) to calculate transition assessments pursuant to RPTL 1805 (3) for tax year2007/2008, and thereupon to refund any overpayments. The petitioner alleged that it wasentitled to transition assessments that would phase in the increases of the assessed valuefor tax year 2007/2008 that were triggered by the assessment reductions that had beengranted for tax year 2006/2007. The Supreme Court granted the petition.
"Ordinarily, the proper method for challenging excessive or unlawful real propertytax assessments is by the commencement of a tax certiorari proceeding pursuant to article7 of the Real Property Tax Law" (Matter of Level 3 Communications, LLC v DeBellis, 72 AD3d164, 173 [2010]). Such a proceeding is properly commenced after exhaustion of theadministrative grievance remedies, [*2]and within 30days after the filing of the final assessment roll (see RPTL 702 [2]; Matter ofLevel 3 Communications, LLC v DeBellis, 72 AD3d at 176-177). An "excessiveassessment" subject to review pursuant to RPTL article 7 includes an assessment of aspecial assessing unit that fails to comply with the limitations on increases in assessedvalue set forth in RPTL 1805 (see RPTL 701 [4] [d]; 706 [1]; Matter of O'Shea v Board ofAssessors of Nassau County, 29 AD3d 1002 [2006], affd 8 NY3d 249[2007]; Matter of Meadowbrook Plaza Assoc. v Board of Assessors, 174 AD2d744 [1991]; Niebuhr v Board of Assessors of County of Nassau, 143 AD2d 989[1988]; South Seas Yacht Club v Board of Assessors & Bd. of AssessmentReview of County of Nassau, 136 AD2d 537 [1988]).
Collateral attacks on assessments are proper where the jurisdiction of the taxingauthority is challenged, the tax itself is claimed to be unconstitutional (see NiagaraMohawk Power Corp. v City School Dist. of City of Troy, 59 NY2d 262,263, 269 [1983]; Matter of Krugman v Board of Assessors of Vil. of Atl. Beach,141 AD2d 175, 179-180 [1988]), or the challenge is to "the method employed in theassessment of several properties rather than the overvaluation or undervaluation ofspecific properties" (Matter ofWoodland Estates, LLC v Soules, 79 AD3d 942, 943 [2010]; see Matter ofDudley v Kerwick, 52 NY2d 542 [1981]). None of these exceptions to the exclusiveapplicability of RPTL article 7 are present here, since the petitioner challenged, asexcessive, the assessments of specific parcels of property by virtue of the appellants'failure to comply with RPTL 1805 (see RPTL 701 [4] [d]).
The petitioner contends that, nonetheless, the commencement of a CPLR article 78proceeding within the time provided for by CPLR 217 is the proper vehicle by which tocompel the requested transition assessments because recalculation of the 2007/2008assessments only became necessary after the assessments for the previous tax year werereduced by the Supreme Court and that reduction was affirmed pursuant to our decisionand order in Matter of RainbowDiner v Board of Assessors (71 AD3d 901 [2010]). We reject this contention,since the petitioner was required to timely exhaust administrative remedies applicable totax certiorari proceedings, and its challenge was subject to the limitations period ofRPTL 702 (2). In Matter of Scellen v Assessor for City of Glens Falls (300 AD2d979, 980 [2002]), the Appellate Division, Third Department, had the occasion tointerpret an analogous statute that freezes certain assessments for three years following ajudicial reduction of those assessments (see RPTL 727). The petitioner theresuccessfully obtained a reduction of her 1998 assessment, and thereafter soughtreductions in the assessments for the following three years pursuant to RPTL 727. TheCourt affirmed the denial of the petitioner's motion for such relief, concluding that thestatutory scheme evinced a clear legislative intent that separate RPTL article 7proceedings be timely commenced to challenge each tax assessment for which relief issought. Accordingly, the petitioner was required to timely commence individual RPTLarticle 7 proceedings to challenge the assessments for each of the ensuing years, eventhough her challenge to the 1998 assessment was pending, and was not permitted toawait the outcome of her challenge to the 1998 assessment. Having failed to timelycommence individual RPTL article 7 proceedings for each year subsequent to 1998, shewas not entitled to relief for those years.
We find the Third Department's analysis to be persuasive here. Having soughtreductions to the assessments of its parcels of property for tax year 2006/2007, thepetitioner knew or should have known that a successful outcome to that consolidatedproceeding could entitle it to transition assessments in ensuing years, and that judicialresolution of the consolidated proceeding would take several years. To preserve itschallenge to the assessments for the tax year 2007/2008, the petitioner was required toexhaust its administrative remedies by filing a timely grievance with the Nassau CountyAssessment Review Commission (hereinafter the ARC) pursuant to the Nassau CountyAdministrative Code in the period between the publication of the tentative assessmentroll and the final assessment roll for that tax year (see generally Matter of Seidel v Board of Assessors, County ofNassau, 88 AD3d 369, 373-374 [2011]; Nassau County Administrative Code§§ 6-7.0, 6-40.3, 6-40.4) and, if no relief was awarded by the ARC, tothereafter timely commence a separate RPTL article 7 proceeding to challenge thoseassessments no later than 30 days after the filing of the final assessment roll (seeNassau County Administrative Code §§ 6-17.2, 6-17.3; cf.RPTL 704 [3] [commencement of tax certiorari proceeding does not stay furtheradministrative proceedings initiated by assessors or entities such as an assessment reviewcommission]). Having failed to do so, the petitioner is not entitled to relief for that taxyear.
[*3] In light of our determination, theappellants' remaining contention has been rendered academic. Skelos, J.P., Lott, Romanand LaSalle, JJ., concur.