Slewett & Farber v. Board of Assessors

• Decision Date: 08 April 1981
• Citation: 438 N.Y.S.2d 544,80 A.D.2d 186
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of SLEWETT & FARBER, Petitioners-Respondents-Appellants, v. The BOARD OF ASSESSORS and the Board of Assessment Review of the County of Nassau, Respondents-Appellants-Respondents. Attorney-General of the State of New York, Intervenor-Appellant-Respondent.

Page 544

438 N.Y.S.2d 544

80 A.D.2d 186

In the Matter of SLEWETT & FARBER, Petitioners-Respondents-Appellants, v. The BOARD OF ASSESSORS and the Board of Assessment Review of

the County of Nassau, Respondents-Appellants-Respondents.

Attorney-General of the State of New York,

Intervenor-Appellant-Respondent.

Supreme Court, Appellate Division,

Second Department.

April 8, 1981.

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

Koeppel, Sommer, Lesnick & Martone, P. C., Mineola (Bernard Sommer, Adolph Koeppel, Irving I. Lesnick, Tracie P. Peddy and Ann Del Casino, Mineola, of counsel), for petitioners-respondents-appellants.

Robert Abrams, Atty. Gen., New York City (John M. Farrar, Robert Schonfeld and George D. Zuckerman, Asst. Attys. Gen., New York City, of counsel; Beth Turtz, Law Intern, on the brief), intervenor-appellant-respondent pro se.

Allen G. Schwartz, Corp. Counsel, New York City (Edith I. Spivack, Reed G. Schneider and Jay M. Herman, New York City, of counsel), for the City of New York, amicus curiae.

Bleakley, Platt, Schmitz & Fritz, Bleakley Schmidt, P. C., White Plains (Frederick J. Martin and Hugh D. Fyfe, White Plains, of counsel), for Rego Properties Corp. and Citizens Tax Council, Inc., amici curiae.

Before LAZER, J. P., and MANGANO, COHALAN and O'CONNOR, JJ.

LAZER, Justice Presiding.

At issue on these cross appeals are the validity and effect of a series of legislative enactments which retroactively altered the means by which aggrieved taxpayers could establish inequality of assessed valuations of real property. The underlying controversy involves the rates at which real property in Nassau County was assessed for the years 1965/66 through 1977/78; the appellate questions pertain, however, to the constitutionality of laws which would nullify petitioners' judicial success in establishing those rates as identical to the equalization rates fixed for Nassau County by the State Board of Equalization and Assessment.

The petitioners, who own a large commercial parcel, have instituted proceedings to review its assessment, alleging that for the years in issue their property was assessed at a higher ratio to fair market value than other property in the county. In moving for partial summary judgment fixing the ratio to fair market value at which property in Nassau County was assessed for those years, the petitioners relied upon the rates established in the case of 860 Executive Towers v. Board of Assessors of County of Nassau, 84 Misc.2d 525, 377 N.Y.S.2d 863, affd. 53 A.D.2d 463, 385 N.Y.S.2d 604, affd. sub nom. Pierre Pellaton Apts. v. Board of Assessors of County of Nassau, 43 N.Y.2d 769, 401 N.Y.S.2d 1013, 372 N.E.2d 801, on the opn. at the Appellate Division) for tax years 1965/66 through 1973/74--which for the years 1970/71 through 1973/74 clearly were based upon the State equalization ratios--and upon the applicable equalization rates for the remaining years under review. In February, 1978, when the motion was made, the use of equalization rates to prove ratio of assessment was provided for in subdivision 3 of section 720 of the Real Property Tax Law. Special Term granted petitioners' motion and fixed each year's ratio at the percentage reflected in 860 for the earlier years and the appropriate equalization rates for the years following those decided in 860. The county now asserts that if collateral estoppel principles bind it to the same equalization rates for the same years, thousands of other pending inequality proceedings will be affected--with attendant fiscal impact. In any event, following Special Term's order, the 1978 and 1979 Legislatures adopted a series of statutory amendments intended to limit the methods of proving inequality, both prospectively and retroactively. Since it is the constitutionality of this legislation which is in principal issue on these appeals, the Attorney-General has intervened to defend the enactments and the City of New York has obtained amicus curiae status for the same purpose. Rego Properties Corp. and the Citizens Tax Counsel, Inc. have been

granted amicus curiae status to support petitioners' claims of unconstitutionality. Under the circumstances, the legislative and judicial history leading to the current dispute comprise a vital backdrop to its resolution.

THE INEQUALITY CONCEPT AND ITS PROOF

In an inequality case, it is the taxpayer's contention that property in the taxing district generally is assessed at less than its full value for tax purposes and that the parcel under review has been assessed at full value or at a greater percentage of its full value than properties in the district generally (People ex rel. Yaras v. Kinnaw, 303 N.Y. 224, 101 N.E.2d 474). "For example, a specific claim might be that a subject property was assessed at 35% of its full value while other properties on the roll were assessed at only 30% of full value. If true, the petitioning taxpayer would be paying more than his due share of the aggregate tax" (860 Executive Towers v. Board of Assessors of County of Nassau, 53 A.D.2d 463, 466, 385 N.Y.S.2d 604 supra). To succeed, therefore, the taxpayer must prove not only the ratio at which property in the tax district generally has been assessed, but that his own parcel was assessed at a higher ratio.

Under former section 293 of the Tax Law (L. 1909, ch. 62, as amd.), the predecessor of the currently pertinent Real Property Tax Law provisions, the mandated method of proof compelled the petitioner and the assessing authorities to establish ratio by selecting a number of parcels from the assessment roll and proving their full value at trial. Once full value to true was determined, the total of the assessed values of the properties selected would be divided by the total of their full value to obtain the actual overall ratio of assessed value to true market value in the taxing district (see People ex rel. Hagy v. Lewis, 280 N.Y. 184, 20 N.E.2d 386). Disagreement as to which parcels were to be used was resolved by the trial court's selection of an equal number from each list submitted by the parties. Either litigant could supplement the select parcel system by offering evidence of the assessment ratio of parcels actually sold within the district during the periods under review.

In 1949, the State Board of Equalization and Assessment (SBEA) was created (see L. 1949, ch. 346) to establish the true ratios at which property was being assessed in all taxing districts and thus to equalize tax burdens between districts which were assessed at differing proportions to true value. The established rates also served to provide a basis for the distribution of State aid based on the assessed valuations (see L. 1949, ch. 346, § 1). Under relevant sections of the Real Property Tax Law, the SBEA is required to establish equalization rates for each city, town and village (Real Property Tax Law, § 1202; see, also, Real Property Tax Law, § 1250 et seq.), as well as for each county in the State (Real Property Tax Law, § 1214), and to sample the ratio of assessments in all cities, towns and villages in the State at least once every five years (Real Property Tax Law, § 1200). The rates themselves are arrived at by examination of sales and other data from the assessing units and the application of various formulae to the information obtained. In 1951 an effort to broaden the type of evidence admissible in an inequality trial by permitting the introduction of equalization rates was rejected in People ex rel. Yaras v. Kinnaw, 303 N.Y. 224, 101 N.E.2d 474, supra. The Yaras court (p. 228, 101 N.E.2d 474) decided that as far as inequality litigation was concerned, equalization rates "not only were entitled to no weight at all, but in truth were inadmissible under section 293 of the Tax Law." Although the court concluded that use of such rates would be misleading since they did not purport to reflect the ratio of assessments to value within the tax district itself, it noted (p. 233, 101 N.E.2d 474) that evidence of actual sales was entitled to "substantial weight" in proving inequality. The advent of scientifically devised random sampling ultimately became the basis for the introduction of actual sales by use of statistical methodology with potential probative value (see Matter In 1961 the Legislature attempted to liberalize the means of proving inequality by amending subdivision 3 of section 720 of the Real Property Tax Law (the successor to Tax Law, former § 293) to permit either party to introduce the State equalization rate established for the assessment roll for the year under review (see L. 1961, ch. 942). The Court of Appeals remained unimpressed, however, and in Matter of O'Brien v. Assessor of Town of Mamaroneck, 20 N.Y.2d 587, 285 N.Y.S.2d 843, 232 N.E.2d 844, rejected a taxpayer's effort to rely exclusively on the equalization rate for his proof. Concluding that the 1961 amendment had rendered equalization rates admissible but had not endowed them with probative value, the court noted (pp. 596, 597, 285 N.Y.S.2d 843, 232 N.E.2d 844) that State equalization rates served an entirely different function from "litigated inequality," were arrived at "by processes quite foreign to those employed in judicial determinations," and "may have little relationship to the actual equality or inequality in a district".

                of Mid-Island Shopping Plaza v. Podeyn, 25 Misc.2d 972, 204 N.Y.S.2d 11, affd. 14 A.D.2d 571, 218 N.Y.S.2d 249, affd. 10 N.Y.2d 966, 224 N.Y.S.2d 283, 180 N.E.2d 63) if properly utilized (cf. Matter of Tilsac Corp. v. Assessor of Town of Huntington, 55 Misc.2d 431, 285 N.Y.S.2d 533, affd. 41 A.D.2d 604, 304 N.Y.S.2d 598, mot. for lv. to app. den. 32 N.Y.2d 611, 344 N.Y.S.2d 1027, 298 N.E.2d 124).   Nevertheless, as late as 1955, the select parcel method was still considered probative by the Court of Appeals, particularly if the sample parcels

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