| Tricarico v County of Nassau |
| 2014 NY Slip Op 05857 [120 AD3d 658] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Joanne Tricarico et al., Appellants, v County ofNassau et al., Respondents. |
Judith N. Berger, Babylon, N.Y., for appellants.
Carnell T. Foskey, County Attorney, Mineola, N.Y. (Jackie L. Gross of counsel), forrespondents.
In an action, inter alia, to recover damages related to the classification of certain realproperty as "Class two" residential real property pursuant to RPTL 1802 (1), theplaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Nassau County (Cozzens, Jr., J.), dated February 1, 2012, as, upon reargument,vacated the determination in an order of the same court dated October 7, 2010, denyingthe defendants' motion pursuant to CPLR 3211 (a) to dismiss the complaint, andthereupon granted the defendants' motion to dismiss the complaint.
Ordered that the order dated February 1, 2012, is affirmed insofar as appealed from,with costs.
The plaintiffs own a four-family residential property in the Town of Oyster Bay. Fortax year 2007/2008, the Nassau County Board of Assessors (hereinafter the Board)classified the property as "Class two" real property pursuant to Real Property Tax Law§ 1802 (1). The plaintiffs commenced this action asserting, inter alia, that theproperty had been previously classified as "Class one" (see RPTL 1802 [1] [a]),that the use of the property had not changed, and that the reclassification had resulted in adramatic increase in the real property tax assessment.
The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint arguing,among other things, that any challenge to the classification had to be made in aproceeding pursuant to RPTL article 7, that no such proceeding had been commenced ina timely manner, and that, as such, the Supreme Court did not have subject matterjurisdiction to consider the plaintiffs' collateral attack. By order dated October 7, 2010,the Supreme Court denied the defendants' motion to dismiss the complaint. In the orderappealed from, the Supreme Court granted the defendants' motion for leave to rearguetheir prior motion to dismiss the complaint, and upon reargument, granted their motion todismiss the complaint.
In general, the proper method for challenging excessive or unlawful real property taxassessments is by the commencement of a tax certiorari proceeding pursuant to RPTLarticle 7 (see Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town ofFallsburg, 78 NY2d 194, 204 [1991]; Matter of St. Francis Hosp. v Taber, 76 AD3d 635, 638[2010]; Matter of Level 3Communications, LLC v DeBellis, 72 AD3d 164, 173 [2010]). Such aproceeding, which must be commenced within 30 days after the filing of the finalassessment roll, can challenge an assessment as being excessive, unequal, or [*2]unlawful, or as resulting from the property beingmisclassified (see RPTL 702 [2]; 706 [1]).
The procedures of RPTL article 7 need not be followed, and a plenary action may becommenced collaterally attacking the assessment where the challenge is that the taxingauthority has exceeded its power, such as by effectively withdrawing a previouslyrecognized exemption (see Kahal Bnei Emunim & Talmud Torah Bnei SimonIsrael v Town of Fallsburg, 78 NY2d at 204-205; Matter of St. Francis Hosp. vTaber, 76 AD3d at 638). A collateral attack may also be mounted where thechallenge is based upon "the method employed in the assessment involving severalproperties rather than the overvaluation or undervaluation of specific properties"(Matter of Krugman v Board of Assessors of Vil. of Atl. Beach, 141 AD2d 175,180 [1988]; see Matter of Board of Mgrs. of Greens of N. Hills Condominium vBoard of Assessors of County of Nassau, 202 AD2d 417, 419 [1994]).
Here, all of the allegations regarding the assessment stem from the Board'sdetermination that the subject property should be classified as "Class two" property onthe 2007/2008 tax roll (see generally Nassau County Administrative Code§ 6-2.1 [a]). As the Supreme Court properly pointed out, a challenge to thisalleged misclassification had to be asserted in a proceeding pursuant to RPTL article 7(see RPTL 706 [1]; Matter of 200 Cent. Ave., LLC v Board of Assessors, 56 AD3d679 [2008]). Contrary to the plaintiffs' contention, this is not a case where apreviously afforded statutory exemption was improperly withdrawn (see Kahal BneiEmunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d at204-205; Matter of Watchtower Bible & Tract Socy. of N.Y. v Lewisohn, 35NY2d 92 [1974]). Moreover, despite the plaintiffs' attempt to style the challenge as oneregarding the method of assessment, it is, in actuality, a claim that the subject propertywas overassessed (see Matter ofWoodland Estates, LLC v Soules, 79 AD3d 942, 943 [2010]). As such, theplaintiffs were required to pursue any remedies they might have had in a proceedingtimely and properly prosecuted pursuant to RPTL article 7.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Dickerson,Hinds-Radix and Duffy, JJ., concur.