22 Park Place Co-op., Inc. v. Board of Assessors of Nassau County

• Decision Date: 25 June 1984
• Citation: 102 A.D.2d 893,476 N.Y.S.2d 935
• Parties: In the Matter of 22 PARK PLACE COOPERATIVE, INC., et al., Respondents, v. The BOARD OF ASSESSORS OF the COUNTY OF NASSAU, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 935

476 N.Y.S.2d 935

102 A.D.2d 893

In the Matter of 22 PARK PLACE COOPERATIVE, INC., et al., Respondents, v. The BOARD OF ASSESSORS OF the COUNTY OF NASSAU, et al., Appellants.

Supreme Court, Appellate Division Second Department.

June 25, 1984.

Edward G. McCabe, County Atty., Mineola (Joshua A. Elkin, Deputy County Atty., Mineola, of counsel), for appellants.

Koeppel, Sommer, Siegel Fenchel, Peddy & Del Casino, P.C., Mineola (William D. Siegel, Mineola, of counsel), for respondents.

Before GIBBONS, J.P., and BROWN, NIEHOFF and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel the Board of Assessors of the County of Nassau to delete increases in values for petitioners' properties and to compel the County of Nassau to refund any overpayment of taxes caused by such increases, the appeal is from so much of a judgment of the Supreme Court, Nassau County (FARLEY, J.), dated May 24, 1983, as granted the petition as to all the petitioners except 210 Shore Road Realty Corp.

Judgment affirmed insofar as appealed from, with costs.

Petitioners are owners of apartment houses that were converted to co-operative ownership between September, 1981 and April, 1982. In August, 1982, appellant Board of Assessors of the County of Nassau increased the assessed valuations on each said parcel by amounts varying from 14% to 92% over the previous year's assessments. The only explanation given on each assessment card was the conversion that had occurred during the previous year. During that year, however, section 581 of the Real Property Tax Law became effective. It prohibits the assessing of a co-operative apartment at any value different from that if it were not co-operative owned (L.1981, ch. 1057, eff. Dec. 3, 1981). Petitioners commenced this article 78 proceeding to rescind these increases.

The appellants moved to dismiss the petition on the ground that a proceeding under article 7 of the Real Property Tax Law was petitioners' exclusive remedy. That motion was denied. Appellants then submitted an answer and affidavits which denied that the assessment increases were due to the co-operative status. Special Term found that the appellants had given no credible alternative explanation for the increases and granted summary judgment to petitioners. This appeal concerns both the question of remedy and the propriety of the judgment.

Ordinarily, challenges to assessments are to be made through a certiorari proceeding under article 7 of the Real Property Tax Law (Hewlett Assoc. v. City of New York, 57 N.Y.2d 356, 363, 456 N.Y.S.2d 704, 442 N.E.2d 1215). However, it has long been recognized that where the assessor's jurisdiction to tax at all--or the legality of the tax itself--is challenged, one is not required to pursue that remedy, but may use either a CPLR article 78 proceeding or a declaratory judgment action (Hewlett Assoc. v. City of New York, supra, p. 363, 456 N.Y.S.2d 704, 442 N.E.2d 1215; Samuels v. Town of Clarkson, 91 A.D.2d 836, 458 N.Y.S.2d 392). But these are not the only exceptions to the exclusive jurisdiction of article 7 of the Real Property Tax Law (Hewlett Assoc. v. City of New York, supra, 57 N.Y.2d p. 364, 456 N.Y.S.2d 704, 442 N.E.2d 1215). Where the challenge concerns not the overvaluation or undervaluation of specific properties, but rather the alleged illegal use of a method involving several properties, a proceeding pursuant to CPLR article 78 is...