Opinion
No. 250721.
03-15-2016
In the Matter of the Application of CITY OF TROY, Petitioner, v. ASSESSOR OF the TOWN OF BRUNSWICK; Board of Assessment Review of the Town of Brunswick, and the Town of Brunswick, Respondents.
Daniel G. Vincelette, Esq., Deputy Corporation Counsel, City of Troy–Law Department, Troy, attorneys for petitioner. Jonathon B. Tingley, Esq., Tuczinski, Cavalier & Gilchrist, LLP, Albany, attorneys for respondents.
Daniel G. Vincelette, Esq., Deputy Corporation Counsel, City of Troy–Law Department, Troy, attorneys for petitioner.
Jonathon B. Tingley, Esq., Tuczinski, Cavalier & Gilchrist, LLP, Albany, attorneys for respondents.
RAYMOND J. ELLIOTT III, J.
Respondents move for an order pursuant to CPLR § 3211(a)(5) dismissing a portion of the Petition which alleges that the 2015 assessment of Petitioner's property is unlawful and unconstitutional in that the subject property has been allegedly selectively reassessed by the assessor. Petitioner has opposed the motion.
Petitioner commenced this tax certiorari proceeding seeking the review of the Respondents' 2015 tax assessment for real property which is part of Frear Park Golf Course owned and operated by Petitioner.
Respondents argue that there has been no reassessment, selective or otherwise, of Petitioner's property in 2015. Respondents assert that Petitioner cannot make a claim for selective reassessment when there has been no change in the assessment of the property in 2015, as compared to the 2014 assessment roll. Respondents argue that the selective reassessment argument being made is based upon an alleged selective reassessment in 2014, not 2015. Respondents assert that this claim is time barred by both RPTL § 702(2) and CPLR § 217. Respondents state that under RPTL § 702(2), Petitioner would have had to file its claim before July 31, 2014, and under CPLR § 217 before November 3, 2014. Respondents state that Petitioner did not impose the claim until July 30, 2015.
Respondents assert that Petitioner has made this untimely claim to subject the Assessor to invasive and irrelevant discovery and deposition. Respondents argue that the Petition in the 2014 proceeding only alleged that the assessment was excessive and unequal not that it was unlawful selective reassessment. Respondents assert that it was only after they filed their opposition papers to Petitioner's motion in the 2014 proceeding, that Petitioner filed this proceeding in an attempt to bootstrap a selective reassessment claim based on the 2014 tax assessment into the 2015 tax assessment. Respondents cite the case of Matter of Avery v. Assessor, 60 AD3d 1133 (3d Dept.2009) to support their argument that asserting claims based upon the previous year's assessment are untimely.
Respondents further argue that Petitioner's challenge to the 2015 assessment based upon the increase that occurred in the 2014 assessment is barred by the doctrine of claim-splitting. Respondents state that Petitioner admits in its motion papers in the 2014 proceeding that it could have asserted a claim for selective reassessment but did not do so. Respondents assert that Petitioner is now barred by claim-splitting from bringing a claim for selective reassessment that occurred in 2014.
In opposition, Petitioner described the 2014 proceeding pending before the Court. Petitioner asserts that based on the Court's Decision and Order dated October 20, 2015, with regard to Petitioner's motion in the 2014 proceeding, that the Court found Respondents' arguments unavailing as to the insufficiency of the pleading of a selective reassessment claim in the 2014 Petition.
Petitioner argues that case law supports its position that courts have entertained selective reassessment claims in successive years as there is a "continuing harm" visited upon the taxpayers when the initial selective reassessment is carried forward. Petitioner further asserts that Matter of Avery v. Assessor is unlike the instant proceedings pending here, because in Avery, there was no privity between the initial petition in the year that the selective reassessment was made and the subsequent petition, as there was no petition to relate back to.
Petitioner asserts that selective reassessment claims can be alleged in tax certiorari proceedings under RPTL Article 7 citing General Electric Co. v. Town of Rotterdam, 292 A.D.2d 689 (3d Dept.2002).
Petitioner states that it has sufficiently pleaded all claims in both its 2014 and 2015 petitions and that its 2015 claim for selective reassessment is not barred by the doctrine of claim-splitting.
In reply, Respondents argue that the 2014 Petition does not state a claim for selective reassessment. Respondents assert that the Court's October 20, 2015, Decision and Order did not specifically state that the 2014 Petition made a claim for selective reassessment, it only made a limited ruling on discovery. Respondents reiterate that since the 2014 Petition failed to set forth a claim for selective reassessment, it cannot be raised now in the 2015 Petition as it is time-barred and barred by the doctrine of claim-splitting.
CPLR § 3211(a)(5) states that a party may move to dismiss a cause of action when "the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds".
The proceeding pending before the Court was commenced under RPTL Article 7 seeking the review of the Respondents' 2015 tax assessment for the property. The Court finds that this proceeding is properly brought under RPTL Article 7 and not CPLR Article 78 as it involves one parcel of property. (see, General Electric Company v. MacIsaac, 292 A.D.2d 689, 691 [3d Dept.2002] ).
Under RPTL § 702(2) : "Such a proceeding shall be commenced within thirty days after the final completion and filing of the assessment roll containing such assessment."
The Court has reviewed its October 20, 2015, Decision and Order regarding the 2014 proceeding and the supporting papers filed, including the Affirmation in Support of Motion to Compel Discovery of Plaintiff's counsel. The Court found that the 2014 Petition set forth sufficient allegations of selective reassessment which provided the basis for granting the limited deposition of the assessor.
Based on the Court's finding that selective reassessment was raised in the 2014 Petition, the Court further finds that a cause of action for selective reassessment has also been properly and timely raised in the 2015 Petition.
"A party invoking the narrow doctrine against splitting a cause of action must show that the challenged claim raised in the second action is based upon the same liability in the prior action, and that the claim was ascertainable when the prior action was commenced" (Melcher v. Greenberg Traurig LLP, 135 AD3d 547 [1st Dept.2016] ).
The Court finds that the selective reassessment cause of action raised in the 2015 Petition is not barred by the doctrine of claim splitting. Selective reassessment was raised in the 2014 Petition and is now alleged again in the 2015 Petition. Petitioner is able to bring selective reassessment claims in successive years as there is a continuation of the assessment upon the taxpayers when the initial selective reassessment is carried forward. (see, Matter of Carroll v. Assessor of City of Rye, NY, 123 AD3d 924 [2d Dept.2014] ). In Carroll, the petitioner filed petitions challenging the assessments for 2003, 2004, 2005, 2006, 2007, 2008, 2009, and 2010, under RPTL Article 7 asserting claims for selective reassessment.
Accordingly, Respondents' motion to dismiss is denied.
This constitutes the decision and order of the Court.
This Decision and Order is being returned to the attorney for the Petitioner. The Court will retain the original supporting documentation until conclusion of the action. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.
SO ORDERED AND ADJUDGED
Papers Considered:
1. Notice of Motion dated October 20, 2015; June 17, 2015; Affirmation in Support of Motion to Dismiss of Jonathon B. Tingley, Esq., dated October 20, 2015, with annexed Exhibits A–H.
2. Affirmation in Opposition of Daniel G. Vincelette, Esq., dated November 10, 2015, with annexed Exhibit A.
3. Reply Affirmation of Jonathon B. Tingley, Esq., dated November 16, 2015.