Opinion
Index No.: 808059/2016 Index No.: 809969/2017
08-02-2019
IN THE MATTER OF THE APPLICATION UNDER ARTICLE 7 OF THE REAL PROPERTY TAX LAW BY ANTHONY F. TRUSSO, Petitioner, v. TOWN OF GRAND ISLAND, Respondent, and GRAND ISLAND CENTRAL SCHOOL DISTRICT, Intervenor-Respondent. FOR REVIEW OF THE 2016-2017 &2017-2018 TAX ASSESSMENT OF CERTAIN REAL PROPERTY IN THE TOWN OF GRAND ISLAND, NEW YORK
PETER ALLEN WEINMANN, Esq. Attorney for Petitioner MICHAEL B. RISMAN, ESQ. Attorney for Respondents
NYSCEF DOC. NO. 30 MEMORANDUM DECISION PETER ALLEN WEINMANN, Esq.
Attorney for Petitioner MICHAEL B. RISMAN, ESQ.
Attorney for Respondents Colaiacovo, J.
Respondents, Town of Grand Island and Grand Island Central School District (hereinafter "the Town"), have moved this Court to dismiss Petitioner Anthony Trusso's Petitions challenging the tax assessments of certain real property located at 345 Land Boulevard in the Town of Grand Island for the tax years of 2016-2017 and 2017-2018. Counsel for Mr. Trusso, now representing Northwest Bank (hereinafter "Northwest"), opposes the Motion to Dismiss and has moved for summary judgment based on the recent sale of the subject property to Collins Marine (not a party to this action) and to amend the case caption, essentially substituting Northwest for Mr. Trusso. The Town argues that Mr. Trusso lacks (or lacked) standing to bring the petitions, that Northwest lacks standing to challenge the assessments on the subject property, and that even if Northwest had standing as an aggrieved party at some point, Northwest failed to comply with the filing deadlines of the Real Property Tax Law. In response, Petitioner argues Mr. Trusso had standing as a "contract vendee" to bring the original action, that Northwest has standing as an "aggrieved party", and that Mr. Trusso and/or Northwest complied with all filing requirements under the Real Property Tax Law (hereinafter "RPTL").
Statement of Facts
The underlying action arises from a tax assessment challenge of real property located at 345 Lang Boulevard in the Town of Grand Island. The Town of Grand Island completed its Assessment Roll for the 2016-2017 tax year on May 1, 2016. The subject property was assessed at $2,900,000. Prior to the end of May 2016, Anthony Trusso petitioned the Board of Assessment Review (hereinafter "BAR") for an assessment reduction on the subject property. Mr. Trusso's designation accompanying his petition was dated May 18, 2016. The BAR did not lower the assessment. Thereafter, in July of 2016, Mr. Trusso commenced an Article 7 lawsuit in Supreme Court. Mr. Trusso did not own or pay the taxes on the subject property when he challenged the assessment before the BAR in May or when he commenced his Article 7 lawsuit in July of 2016. Instead, he challenged the assessment on the subject property under the theory that he was a "contract vendee."
Mr. Trusso was in the process of purchasing the subject property when he petitioned for an assessment reduction. It was anticipated that Mr. Trusso would close on the property after the deadline for an assessment challenge had passed. As such, he petitioned for a reduction to preserve his future rights. Mr. Trusso bid $1,700,000 on the property. However, the purchase was never completed and he never closed on the property. Instead, on March 14, 2017, Northwest bought the subject property at a foreclosure auction for $750,000.
The following year, the Town of Grand Island completed its Assessment Roll for the 2017-2018 tax year on May 1, 2017. The subject property was again assessed at $2,900,000. Prior to the end of May 2017, even though Northwest now owned the property, Anthony Trusso petitioned the BAR for a reduction of the assessment on the subject property. The designation accompanying the 2017 petition was dated May 16, 2017, two months after Northwest bought the property. The designation was signed by "Sara M. Jackson as Agent for Anthony F. Trusso." Risman Affirmation, Ex. C. The BAR again did not lower the assessment and Mr. Trusso proceeded to file a second Article 7 lawsuit challenging the assessment on the property for the 2017-2018 tax year. In March 2018, Northwest sold the subject property to Collins Marine for $1,600,000. Neither Anthony Trusso nor Northwest Bank filed an assessment challenge on the property in 2018.
Discussion
It is well settled that all favorable inferences must be awarded to a Plaintiff when Defendants seek to dismiss their complaint. Leon v. Martinez, 82 N.Y.2d 83 (1994). When considering the relief requested in a motion to dismiss, the Court is "limited to examining the pleading to determine whether it states a cause of action." Meyer v. Stout, 45 A.D.3d 1445 (4th Dep't. 2007). The Court must accept the facts as alleged as true and interpret them in the light most favorable to the Plaintiff. Matter of Board of Education, Lakeland Cent. School District of Shrub Oak v. State Educ. Dept., 116 A.D.2d 939 (3rd Dep't. 1986).
However, this does not necessarily mean that a verified complaint may avoid CPLR 3211 scrutiny. Bare legal conclusions and factual claims are insufficient. That said, on a motion to dismiss made pursuant to CPLR 3211, a defendant has the burden of demonstrating that the documentary evidence conclusively resolves all factual issues and that a plaintiff's claims fail as a matter of a law. A court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are "unsupportable based upon the undisputed facts." Robinson v. Robinson, 303 A.D.2d 234 (1st Dep't. 2003).
As previously noted, on a motion to dismiss pursuant to CPLR 3211, the pleading that is sought to be dismissed must be afforded liberal construction. However, even affording the Petitioner every favorable inference and interpreting the pleadings liberally, the facts before the Court do not favor the Petitioner with respect to the Town's motion to dismiss or Petitioner's own summary judgment motion.
During oral arguments the parties concentrated on two issues. First, the issue of standing. To that end, both Petitioner and Respondent relied on Larchmont Pancake House v. Board of Assessors, 33 N.Y.3d 228 (2019) to support their respective positions on standing. The parties clearly interpret the case's holding and its applicability to the instant case quite differently.
Second, the filing requirements of the RPTL. During argument, Petitioner insisted that "no deadline was missed, not a single deadline. There's a two-stage filing process for assessment challenges; grievances in May, and then the Article 7 in the court system is in July. Both of those sets of deadlines were met each and every time." Oral Argument Transcript at p. 14, lines 5-9. Not surprisingly, Respondent views the issue differently. Respondent argued that "Northwest . . . intentionally did not [file a grievance or a petition]. They could have filed a grievance, and they could have filed a petition. And now they're two years past the statute of limitations. They can't just create a new right. It's jurisdictional. It's beyond the statute of limitations." Id. at p. 4, lines 14-21.
With respect to standing, Mr. Trusso commenced the 2016 action as a "contract vendee." A "vendee" is defined simply as a "purchaser, usu. [usually] of real property; a buyer." Black's Law Dictionary, Ninth Edition. However, Mr. Trusso never actually purchased the subject property. As a "contract vendee," Mr. Trusso might have qualified as an aggrieved party had the purchase of the property been consummated by virtue of "the probability that petitioner would be adversely affected by an improper assessment thereon." Mack v. Assessor of Town of Ramapo, 72 A.D.2d 604, 605 (2d Dept. 1979). While it can be argued that Mr. Trusso commenced the 2016 action properly in light of the pending purchase, the purchase fell through before the 2017 filing. Mr. Trusso never owned the property, never paid the taxes on the property, and never had an adverse effect on his pecuniary interest. See generally Larchmont Pancake House v. Board of Assessors, 33 N.Y.3d 228 (2019); RPTL §704. Instead, Northwest purchased the subject property on March 14, 2017. Given the property's ownership history, it is clear that neither Mr. Trusso nor Sara M. Jackson as his agent had standing to bring the 2017 action.
With respect to the filing requirements under the Real Property Tax Law, Northwest, as owner of the subject property (not Trusso as noted above), had standing to challenge the property's assessment in 2017. The appropriate procedure at that time would have been for Northwest to file a grievance or complaint pursuant to Article 5 of the RPTL in May of 2017. If the BAR denied Northwest the relief requested, Northwest should have filed an Article 7 Petition within thirty days of the Town's filing its final assessment roll. RPTL §702(2); See also Matter of Mandel v. Board of Assessors for Town of Woodbury, 60 A.D.3d 1063 (2d Dept. 2009).
The filing requirements under the RPTL are strict. Failure to file the Article 7 Petition on time is a fatal defect. RPTL §702(2),(3); See also Rossi v. Town of Colonie Dept. of Assessment, 13 A.D. 683 (3d Dept. 2004). Furthermore, "the proper filing of an administrative grievance pursuant to RPTL article 5 is a condition precedent to judicial review pursuant to RPTL article 7." 33 N.Y.3d at 235; See RPTL §706; See also Matter of Grossman v. Board of Trustees of Vil. of Geneseo, 44 A.D.2d 259 (4th Dept. 1974). Northwest did not proceed to challenge the subject property's assessment pursuant to RPTL Articles 5 or 7 in 2017, 2018, or 2019.
In February of 2019, Northwest moved for summary judgment and to amend the caption. The Court is again confronted with the issue of standing as Collins Marine purchased the subject property in March of 2018. In other words, Northwest no longer owns the subject property. For all the reasons noted above regarding Mr. Trusso's standing, the Court finds that Northwest no longer has standing to move the Court for summary judgment or to amend the caption.
Based on the foregoing, the Respondent's motion to dismiss the 2016 and 2017 petitions is hereby GRANTED. Furthermore, the Petitioner's motion for summary judgment and to amend the case caption is hereby DENIED.
This shall constitute the decision of the Court. Defendant shall submit an Order on notice.
/s/_________
Hon. Emilio Colaiacovo, J.S.C.