| Joon Mgt. One Corp. v Town of Ramapo |
| 2016 NY Slip Op 05795 [142 AD3d 587] |
| August 17, 2016 |
| Appellate Division, Second Department |
[*1]
| Joon Management One Corp.,Appellant, v Town of Ramapo et al., Respondents. |
Barry D. Haberman, New City, NY, for appellant.
Michael L. Klein, Town Attorney, Suffern, NY, for respondents.
In an action, inter alia, for a judgment declaring that the 2009/2010 tax yearassessment of certain real property was overstated and erroneous, the plaintiff appealsfrom an order of the Supreme Court, Rockland County (Garvey, J.), dated January 27,2014, which granted the defendants' motion for summary judgment dismissing thecomplaint and denied its cross motion, inter alia, for leave to amend the complaint to addcauses of action to recover money had and received and to recover damages pursuant to42 USC § 1983 for violation of constitutional rights under color of statelaw, or, in the alternative, to enforce an alleged settlement agreement.
Ordered that the order is affirmed, with costs.
The plaintiff owns real property in the Town of Ramapo. In December 2009, theplaintiff commenced this plenary action against the Town of Ramapo, Scott J. Shedler, asAssessor of the Town of Ramapo, and the Board of Assessment Review for the Town ofRamapo (hereinafter collectively the Town) seeking, inter alia, a judgment declaring thatthe property's 2009/2010 tax year assessment was overstated and erroneous. Followingservice of the Town's answer, counsel for the parties engaged in settlement negotiations.After the Town Board of the Town of Ramapo (hereinafter the Town Board) rejected aproposed stipulation of settlement, the Town moved for summary judgment dismissingthe complaint. The plaintiff cross-moved, inter alia, for leave to amend the complaint toadd causes of action to recover money had and received and to recover damages pursuantto 42 USC § 1983 for violation of constitutional rights under color of statelaw or, in the alternative, to enforce the alleged settlement agreement. The SupremeCourt granted the Town's motion and denied the plaintiff's cross motion. We affirm.
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 Better World Real Estate Group v New York City Dept. ofFin., 122 AD3d 27 [2014]; Matter of St. Francis Hosp. v Taber, 76 AD3d 635, 638[2010]). Such a proceeding is properly commenced after exhaustion of the administrativegrievance remedies, and within 30 days after the filing of the final assessment roll(see RPTL 702 [2]; Matter of Jonsher Realty Corp./Melba, Inc. v Board ofAssessors, 118 AD3d 787, 788 [2014]; Matter of Level 3 Communications, LLC v DeBellis, 72 AD3d164, 176-177 [2010]). However, where the jurisdiction of the taxing authority ischallenged, the tax itself is claimed to be [*2]unconstitutional (see Niagara Mohawk Power Corp. vCity School Dist. of City of Troy, 59 NY2d 262, 268-269 [1983]; Matter ofKrugman v Board of Assessors of Vil. of Atl. Beach, 141 AD2d 175, 179-180[1988]), or the challenge is to the method employed in the assessment involving severalproperties rather than the overvaluation or undervaluation of specific properties (seeMatter of Dudley v Kerwick, 52 NY2d 542, 549-550 [1981]; Tricarico v County of Nassau,120 AD3d 658, 659-660 [2014]), a plenary action, not subject to the procedures ofRPTL article 7, may be commenced.
The Town established its prima facie entitlement to judgment as a matter of law bydemonstrating that (1) the plaintiff's challenge was required to be asserted in aproceeding pursuant to RPTL article 7 because the gravamen of the plaintiff's claim isthat the property was overassessed (see Matter of Woodland Estates, LLC v Soules, 79 AD3d942, 943 [2010]; Matter ofCathedral Fourth Dev. Corp. v Board of Assessors & Assessment Review Commn.of County of Nassau, 25 AD3d 693, 694 [2006]), and (2) any such RPTL article7 proceeding was time-barred (see Matter of Hall v Board of Assessors, 60 AD3d 853, 854[2009]; Matter of Laurel HillFarms, Inc. v Board of Assessors of Nassau County, 51 AD3d 794, 795 [2008];Matter of Cathedral Fourth Dev. Corp. v Board of Assessors & AssessmentReview Commn. of County of Nassau, 25 AD3d at 694). In opposition, the plaintifffailed to raise a triable issue of fact as to whether its challenge was an appropriate basisfor a plenary collateral attack or that an RPTL article 7 proceeding would be timely(see CPLR 103 [c]; RPTL 702 [2]; Matter of Hall v Board of Assessors,60 AD3d at 854; Matter of Laurel Hill Farms, Inc. v Board of Assessors of NassauCounty, 51 AD3d at 795).
The plaintiff's contention that the Town's motion for summary judgment waspremature is without merit, as it failed to demonstrate how discovery might lead torelevant evidence or that the facts essential to justify opposition to the motion wereexclusively within the knowledge and control of the Town (see CPLR 3212 [f];Rungoo v Leary, 110 AD3d781, 783 [2013]; Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]).
Accordingly, the Supreme Court properly granted the Town's motion for summaryjudgment dismissing the complaint.
With respect to that branch of the plaintiff's cross motion which was for leave toamend the complaint, applications for leave to amend pleadings should be freely grantedexcept when the delay in seeking leave would directly cause undue prejudice or surprisethe opposing party, or when the proposed amendment is palpably insufficient or patentlydevoid of merit (CPLR 3025 [b]; see Fough v August Aichhorn Ctr. for Adolescent Residential Care,Inc., 139 AD3d 665 [2016]; Edwards v 1234 Pac. Mgt., LLC, 139 AD3d 658 [2016];Maldonado v Newport Gardens,Inc., 91 AD3d 731, 731-732 [2012]; Lucido v Mancuso, 49 AD3d 220, 222, 227 [2008]). Here,the Supreme Court properly denied that branch of the plaintiff's cross motion which wasfor leave to amend the complaint, since the proposed amendments were patently devoidof merit.
Finally, the Supreme Court properly denied that branch of the plaintiff's cross motionwhich was, in the alternative, to enforce the alleged settlement agreement, as thestipulation of settlement was never approved by the Town Board and, therefore, neverbecame binding upon the Town (see Town Law § 68; Matter ofPar Bldrs. v Assessor of Town of Orangetown, 234 AD2d 374, 375 [1996];Walentas v New York City Dept. of Ports, 167 AD2d 211, 211-212 [1990]; cf. JRP Old Riverhead Ltd. v Townof Southampton, 44 AD3d 905, 909 [2007]).
The parties' remaining contentions either are without merit or have been renderedacademic in light of our determination. Dillon, J.P., Dickerson, Cohen and Duffy, JJ.,concur.