Opinion
Index No. 500365/2018
10-25-2019
PATRICIA ACCURSO, et al., Plaintiffs, v. GLENN DROSE, tax assessor of the Town of Carmel, et al., Defendants.
Unpublished Opinion
To commence the statutory period for appeals as of right under CPLR § 5513(a), you are advised to serve a copy of this order, with notice of entry, upon all parties.
SHORT FORM ORDER
THOMAS P. ZUGIBE J.S.C.
The Following papers, (Motion Sequence #1, Documents 8-40; #2 Documents 26-40), were considered in connection with Defendants' Notice of Motion seeking summary judgment and Plaintiffs' Notice of Cross-Motion, seeking to amend their complaint in this matter. Upon considering the documents submitted and the law, the Court grants defendants' motion dismissing this matter, and denies plaintiffs' cross-motion to amend their complaint
The facts here are not complex. Plaintiffs own homes in fee simple in a townhouse community in Putnam County. For some time, defendants had, for at least property tax purposes, considered plaintiffs as something other than individual homeowners. As a result, plaintiffs have enjoyed a reduction in their property taxes. When the Town conducted a property revaluation, it discovered the error and fixed it. This resulted in significantly increasing plaintiffs' property valuations and unsurprisingly, their tax bills. Needless to say, nobody complained when their taxes were low, but now plaintiffs are upset that they are paying as fee simple homeowners, i.e. at a higher rate for their properties.
Plaintiff have sued the Town defendants. Their complaint alleges five causes of action that the Town defendants: 1) failed to properly reassess plaintiffs' home values; 2) violated plaintiffs' Equal Protection rights under the New York Constitution; 3) violated plaintiffs' Equal Protection rights under the United States Constitution; 4) should pay legal fees in accordance with 42 U.S.C. §1983; and 5) negligently reassessed plaintiffs' properties.
The Town defendants now move for summary judgment dismissing this matter in its entirety. Based upon the facts as adduced in the papers and the law, the Court is constrained to grant defendants' motion and dismiss this matter in its entirety.
According to the Court of Appeals, "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). The Second Department has further held summary judgment is improper where unsettled questions of fact remain. See Rajkumar v. Lai, No. 2017-01390, 2019 WL 1051294 (2d Dep't 2019).
Here, defendants have presented this Court with facts supported by documentary evidence that plaintiffs' lawsuit should be dismissed as untimely. While being couched in declaratory judgment terms, the action should or could have been brought as either an RPTL Article 7 proceeding or as an Article 78 proceeding. As the Second department has stated, actions like plaintiffs here are properly brought as Article 7 proceedings, with a limitations period of only 30 days. Tricahco v. County of Nassau, 120 A.D.3d 658, 659-660 (2d Dep't 2014). While plaintiffs claim they are challenging the methodology the Town used, and allege that the entire valuation was flawed, "a fair reading of the allegations contained" in their complaint belies this allegation. Abrams v. Long Island Lighting Co., 117 A.D.2d 764, 764-765 (2d Dep't 1986). Indeed, plaintiffs seek to overturn only their personal tax valuations - relief that is personal to them alone, rather than the town taxpayers in general. This reinforces the conclusion that Article 7 is the proper forum, and that plaintiffs have missed the statute of limitations date.
The Town's actions or inactions related to revaluation and taxing are issues ripe for adjudication as Article 78 proceedings, with the attendant four-month limitations period. Press v. County of Monroe, 50 N.Y.2d 695, 699 (1980); Spinney at Pond View, LLC v. Town Bd of The Town of Schodack, 99 A.D.3d 1088, 1088-1090 (3d Dep't 2012); see Pebble Hill Bldg. Corp. v. Madelik, 143 A.D.3d 684, 685 (2d Dep't 2016). The same can be said for plaintiffs' federal and state constitutional and §1983 claims. Joon Mgt. One Corp. v. Town of Ramapo, 142 A.D.3d 587, 587-89 (2d Dep't 2016)
Further, plaintiffs' "contention that the Town's motion for summary judgment was premature is without merit, as [they] failed to demonstrate how discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the Town." Joon Mgt. at 589. Merely asserting that discovery is required does not suffice. For example, there can be no doubt that plaintiffs hold their properties in fee simple. Documents, including those submitted in plaintiffs' opposition, proves this fact. The fact that there may be other property that plaintiffs' jointly hold does not detract from this documentary truth. Thus, plaintiffs have failed to show what discovery would show as to the matters in controversy.
The Court also grants summary judgment to defendants on these alternative grounds. First, plaintiffs do not dispute that they did not pay their taxes "under protest" and have therefore lost their ability to challenge those payments even if the revaluation is thereafter invalidated. Falk v. Nassau County, 175 A.D.3d 607, 609 (2d Dep't 2019). Second, those plaintiffs who failed to exhaust their administrative remedies through the protest system in place for incorrect valuations before coming to court cannot do so now. T-Rex Hyde Park Owner, LLC v. Dutchess County Legislature, 134 A.D.3d 1024, 1027 (2d Dep't 2015). Third, plaintiffs' stated constitutional claims fail as subsumed into their statutory claims under either Articles 7 or 78, above. Fourth, plaintiffs failed to file a proper Notice of Claim for any of their claims against the municipality, its officers and its employees for their state actions. 423 S. Salina St. v. Syracuse, 68 N.Y.2d 474, 480 (1986); Mirro v. City of New York, 159 A.D.3d 964, 966 (2d Dep't 2018). Fifth, Plaintiffs' federal claims fail as subsumed into state laws that adequately protect plaintiffs, or would have had they followed the rules related to bringing such claims. Nat'l Private Truck Council v. Okla. Tax Comm'n, 515 U.S. 582, 588 (1995); Tri-State Christian T.V., Inc. v. Dillenberg, 275 A.D.2d 993 (4th Dep't 2000) (citingNat'l Private Truck Council). Defendants' remaining arguments, including but not limited to their "class of one" and qualified immunity arguments are similarly persuasive and establish prima facie cases for summary judgment. Plaintiffs' opposition either raises no material issues of fact or fail to address those arguments, effectively conceding those points. The Court therefore grants summary judgment to defendants on each cause of action.
The Court denies as futile plaintiffs' cross motion seeking to amend their complaint and to file a late Notice of Claim. First, given the Court's statute of limitations ruling, it cannot allow a late notice in this matter. Matter of Nicholson v. City of New York, 166 A.D.3d 979, 980 (2d Dep't 2018). Plaintiff do not argue that the limitations periods, including for their negligence claims, should be tolled, and the maximum limitations period, one year and ninety days from accrual of the action, has already long passed. The Constitutional claims are either because they did not attach the proposed amended complaint to their cross motion. Branch v. Abraham & Strauss Dep't Store. 220 A.D.2d 474. 475 (2d Dep't 1995). Third, plaintiffs, through counsel's hearsay affirmation, fail to suggest to the Court how it would amend the complaint. Indeed, counsel merely states that "If this Court finds the pleadings are not sufficient, it has the power and authority to grant leave for an amended complaint to be served...." In our adversarial system, the litigants, not the Court, suggest amendments to pleadings. The Court therefore denies as futile the cross-motion to amend.
ORDERED that defendants' motion for summary judgment is granted in its entirety and plaintiffs' cross-motion to amend the complaint is denied.
The foregoing constitutes the Decision and Order of the Court.