Opinion
April 12, 1984
Appeal from the Supreme Court, Onondaga County, Stone, J.
Present — Hancock, Jr., J.P., Denman, Boomer, O'Donnell and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In their action to quiet title and set aside a deed given by defendant village to defendant Rob Roy Pools, Inc., plaintiffs seek a declaratory judgment that their property is tax exempt under section 421 Real Prop. Tax of the Real Property Tax Law (as amd and renum by L 1981, chs 105, 919). Special Term dismissed the request for the declaratory judgment upon the ground that plaintiffs had not complied with the procedures for obtaining exemption under the Real Property Tax Law. This was error, and that aspect of the complaint is reinstated. It is well settled that if "the assessor erroneously fails or refuses to wholly exempt the taxpayer's property, the resulting tax is a nullity which may be challenged in an action in equity (asserting that the void assessment is a cloud on title), in an article 78 proceeding, or in a declaratory judgment action (Lee and Le Forestier, Review and Reduction of Real Property Assessments in New York [2d ed], § 10.09). The taxing authority is said to have acted 'without jurisdiction' ( Matter of State Ins. Fund v Boyland, 282 App. Div. 516, 520, affd 309 N.Y. 1009) and its determination may be attacked collaterally" ( Stabile v Half Hollow Hills Cent. School Dist., 83 A.D.2d 945, 946; see Matter of Glickenhaus Foundation v Board of Assessors, 40 A.D.2d 1059; American-Russian Aid Assn. v City of Glen Cove, 41 Misc.2d 622, affd 23 A.D.2d 966). ¶ We find no abuse of discretion in Special Term's grant of an order of protection pursuant to CPLR 3103 with respect to evidence pertaining to a disciplinary proceeding which culminated in the disbarment of defendant Rob Roy's president. While the information could undoubtedly be used for impeachment purposes on cross-examination, it is not evidence material and necessary for the prosecution or defense of the action (see 3A Weinstein-Korn-Miller, N Y Civ Prac, par 3101.07). Moreover, much of it is a matter of public record (see Matter of Weichert, 40 A.D.2d 261).