Opinion
09-26-2016
In the Matter of the Application of LEVEL 3 COMMUNICATIONS, LLC, Petitioner, v. ESSEX COUNTY, Village of Port Henry, Ausable Valley Central School District, Crown Point Central School District, Moriah Central School District, Ticonderoga Central School District, Westport Central School District and Willsboro Central School District, Respondents.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich of counsel), for petitioner. Daniel T. Manning, County Attorney, Elizabethtown, for respondent Essex County.
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York (John G. Nicolich of counsel), for petitioner.
Daniel T. Manning, County Attorney, Elizabethtown, for respondent Essex County.
ROBERT J. MULLER, J. Petitioner commenced this CPLR article 78 proceeding in January 2015 seeking refunds of real property taxes paid from 2011 to 2013. Before respondents answered, the parties entered into a stipulation, which was so ordered by the Court in April 2015, staying the proceeding pending a decision from the Appellate Division, Third Department, in a potentially dispositive case involving the same parties and the same issues. In June 2015, that case was decided favorably to respondents (see Matter of Level 3 Communications, LLC v. Essex County, 129 A.D.3d 1255, 11 N.Y.S.3d 334 [2015] ) and, in October 2015, the Court of Appeals denied leave (26 N.Y.3d 907, 2015 WL 5972590 [2015] ). The stay was terminated and, after petitioner declined respondents' request to withdraw this proceeding, respondents submitted a verified answer in June 2016 (together with the administrative record and an affidavit from the director of real property tax services for the county) seeking dismissal of the petition.
Petitioner has asked for a further stay of this proceeding (see CPLR 2201 ). Petitioner's counsel acknowledges that the Third Department's decision in Matter of Level 3 Communications, LLC v. Essex County, 129 A.D.3d 1255, 11 N.Y.S.3d 334 (2015) is dispositive and that dismissal is appropriate “if the Third Department's ruling is not overruled by the Third Department or otherwise disapproved by the Court of Appeals” [Affirmation of John G. Nicolich, Esq., dated June 24, 2016, par. 4]. Petitioner urges that the Court issue a further stay since, after the Third Department's June 2015 decision, the Court of Appeals rendered a May 2016 decision in Matter of Highbridge Broadway, LLC v. Assessor of the City of Schenectady, 27 N.Y.3d 450, 34 N.Y.S.3d 378, 54 N.E.3d 50 (2016), which arguably could impact the earlier Third Department holding in Matter of Level 3 Communications, LLC v. Essex County, supra . Significantly, on September 6, 2016, petitioner argued before the Third Department a case with the same issue as relevant herein (Matter of Level 3 Communications, LLC v. Clinton County [appeal no. 522214] ) in which it urged that, based on Matter of Highbridge Broadway, supra , the relevant rationale in the June 2015 decision of the Third Department should be overruled.
“If the point of law involved in the case, and potentially dispositive of it, is about to be definitively decided in another case presently on appeal before a court whose decisions bind the trial court, the action may be stayed to await the decision. This should be done sparingly, however, and only when the decision is imminent” (David D. Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C2201:11 [citations omitted];
see 3A Carmody–Wait 2d § 22:20 ; Home Equity Mtge. Trust Series v. DLJ Mtge. Capital, 2013 N.Y. Slip Op. 32963[U], 2013 N.Y. Misc. Lexis 5424, 2013 WL 6143645 [Sup.Ct.N.Y.Co.2013] ). Under the unique and narrow circumstances, the Court will stay this proceeding briefly. Factors considered in granting this brief stay include that oral argument has already occurred in Matter of Level 3 Communications, LLC v. Clinton County (supra ), the Third Department typically renders its decisions within 30 to 45 days of argument, there was a Court of Appeals case after the Third Department's June 2015 decision arguably touching on the pertinent issues, and petitioner's candor in acknowledging that it will not prevail in this proceeding unless the rationale in the Third Department's June 2015 decision is overruled. However, no further stay will be granted. If petitioner does not convince the Third Department in Matter of Level 3 Communications, LLC v. Clinton County (supra ) to reverse the relevant portion of Matter of Level 3 Communications, LLC v. Essex County, supra , then this proceeding will be dismissed. The Court will not, as further suggested by petitioner, await a decision from the Fourth Department in a similar case petitioner has pending there for which oral argument is not scheduled until November 2016 nor will the Court await a decision on an application to the Court of Appeals for leave to appeal in Matter of Level 3 Communications, LLC v. Clinton County (supra ) should it be decided unfavorably to petitioner (see generally Miller v. Miller, 109 Misc.2d 982, 441 N.Y.S.2d 339 [1981] ; Home Equity Mtge. Trust Series v. DLJ Mtge. Capital, 2013 N.Y. Slip Op. 32963[U], supra ).
Accordingly, it is
ORDERED that this proceeding is stayed until a decision is handed down by the Appellate Division, Third Department, in the case Matter of Level 3 Communications, LLC v. Clinton County (appeal no. 522214) which was argued September 6, 2016.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Petition dated December 18, 2014 and the submissions referenced below. Counsel for petitioner is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon respondent in accordance with CPLR 5513.