Atria Associates v. County of Nassau

• Decision Date: 30 March 1992
• Docket Number: SEAMAN-MITCHEL,No. 7,No. 14,NASSAU-MERRICK,No. 19,No. 15,No. 2,No. 4,No. 3,No. 18,No. 13,No. 10,No. 16,No. 6,No. 11,No. 12,No. 8,No. 9,No. 17,MITCHEL-OAK,No. 5,No. 1,1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19
• Citation: Atria Associates v. County of Nassau, 582 N.Y.S.2d 439, 181 A.D.2d 847 (N.Y. App. Div. 1992)
• Parties: ATRIA ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). ATRIA EAST ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). COLISEUM TOWERS ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). DiFAZIO ELECTRIC, INC., et al., Respondents, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). FINANCIAL CENTER ASSOCIATES OF EAST MEADOW, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). GARMEL ENTERPRISES, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). GURNETT ROCK, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). L.B. REALTY CO., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). MEADOWBROOK PLAZA SOUTH, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action). STREET ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action0). AVENUE REALTY COMPANY, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action1). RECKSON ASSOCIATES, et al., Respondents-Appellants, v. COUNTY OF NASSAU, et al., Appellants-Respondents, et al., Defendants (Action2). Gerard RODOLITZ, et al., Respondents, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendants (Action3). RODOLITZ ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendants (Action4). ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action5). UNITED PARCEL SERVICE, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action6). OAK REALTY COMPANY, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action7). FREQUENCY ELECTRONICS, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action8). ROLIN REALTY COMPANY, Respondent, v. COUNTY OF NASSAU, et al., Ap
• Court: New York Supreme Court — Appellate Division

Page 439

582 N.Y.S.2d 439

181 A.D.2d 847

ATRIA ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 1).

ATRIA EAST ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 2).

COLISEUM TOWERS ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 3).

DiFAZIO ELECTRIC, INC., et al., Respondents, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 4).

FINANCIAL CENTER ASSOCIATES OF EAST MEADOW, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 5).

GARMEL ENTERPRISES, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 6).

GURNETT ROCK, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 7).

L.B. REALTY CO., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 8).

MEADOWBROOK PLAZA SOUTH, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 9).

MITCHEL-OAK STREET ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 10).

NASSAU-MERRICK AVENUE REALTY COMPANY, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al Defendant (Action No. 11).

RECKSON ASSOCIATES, et al., Respondents-Appellants, v. COUNTY OF NASSAU, et al., Appellants-Respondents, et al Defendants (Action No. 12).

Gerard RODOLITZ, et al., Respondents, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendants (Action No. 13).

RODOLITZ ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendants (Action No. 14).

SEAMAN-MITCHEL ASSOCIATES, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 15).

UNITED PARCEL SERVICE, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 16).

OAK REALTY COMPANY, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 17).

FREQUENCY ELECTRONICS, INC., Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 18).

ROLIN REALTY COMPANY, Respondent, v. COUNTY OF NASSAU, et al., Appellants, et al., Defendant (Action No. 19).

Supreme Court, Appellate Division Second Department.

March 30, 1992.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Leslie Gordon Fagen, Karen J. Lamp, and Aidan Synnott, of counsel, David M. Schnorrenberg on the brief), for appellants in Action Nos. 1 through 19 and for appellants-respondents in Action No. 12.

Block, Amelkin & Hamburger, Smithtown (Richard Hamburger, Frederic Block and Keith Icove, of counsel), for respondents-appellants in Action No. 12.

Koeppel Del Casino & Martone, P.C., Mineola (Donald F. Leistman and James DeCuzzi, of counsel), for respondents in Action Nos. 1, 2, 8, 9, 10, 11, and 17.

Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., Uniondale (Steven L. Herrick and Jamie Beth Wollman, of counsel), for respondents in Action Nos. 3 and 5.

Meyer, Suozzi, English & Klein, P.C., Mineola (Jeffrey G. Stark and Edward J. Gutleber, of counsel), for respondents in Action No. 4.

D'Amato, Forchelli, Libert, Schwartz, Mineo & Joseph F. Carlino, Mineola (Warren S. Arthur, of counsel), for respondent in Action No. 6.

Whitman & Ransom, New York City (Norma B. Levy and Philip M. Smith, of counsel), for respondent in Action No. 7.

Certilman Balin Adler & Hyman, East Meadow (Dale Allinson, of counsel), for respondents in Action No. 13.

Certilman Balin Adler & Hyman, East Meadow (Dale Allinson, of counsel), for respondent in Action No. 14.

Certilman Balin Adler & Hyman, East Meadow (Dale Allinson, of counsel), for respondent in Action No. 15.

Peter H. & Hubert J. Brandt, New York City (Hubert J. Brandt and Shelah S. Moller, of counsel), for respondent in Action No. 16.

Siegel Fenchel & Peddy, P.C., Garden City (William D. Siegel and Andrew G. Cangemi, of counsel), for respondents in Action Nos. 18 and 19.

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger & Reich, Northport (Lawrence W. Reich, of counsel), for Uniondale Union Free School Dist. and East Meadow Union Free School Dist., amici curiae.

Before BALLETTA, J.P., and MILLER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In actions by the lessees of certain real property owned by the County of Nassau, inter alia, for a judgment declaring that certain retroactive real property tax assessments are void, the defendants, with the exception of the Town Receiver of Taxes of the Town of Hempstead, appeal, as limited by their brief, from so much of 19 orders and judgments (one as to each action) of the Supreme Court, Nassau County (McGinity, J.), dated October 2, 1989 (Action No. 16), October 10, 1989 (Action Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15), November 28, 1989 (Action Nos. 18 and 19), and December 7, 1989 (Action No. 17), as, inter alia, (1) granted the plaintiffs' separate motions for summary judgment declaring that the defendants are precluded from collecting certain real property taxes on the ground that retroactive assessments are null and void, and (2) granted those branches of the motions by the plaintiffs DiFazio Electric Inc., Concept 400 Realty Co., Computer Associates International, Inc. (Action No. 4), and Reckson Associates and HMCC Associates (Action No. 12), which were for summary judgment declaring that they are not liable for that portion of the property taxes assessed against the land on which the leased property is located. The plaintiffs Reckson Associates and HMCC Associates cross appeal, as limited by their notice of appeal and further limited by their brief, from so much of the order and judgment of the same court, dated October 10, 1989 (Action No. 12), as denied those branches of their motion which were for (1) summary judgment declaring January 28, 1989, to be the "rent commencement date" of the parcel C lease and that the plaintiffs are not responsible for the payment of real estate taxes on Parcel C prior to that date, (2) injunctive relief, and (3) a refund of certain real property taxes and rents.

ORDERED that the order and judgment in Action No. 4 is modified, on the law, by deleting the provision thereof which granted that branch of the motion of the plaintiffs DiFazio Electric Inc., Concept 400 Realty Co., and Computer Associates International, Inc., which was for summary judgment declaring that they are not liable for that portion of the property taxes assessed against the land on which the leased property is located, and substituting therefor a provision denying that branch of their motion; as so modified the order and judgment in Action No. 4 is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County for a hearing on the issue of whether the plaintiffs are liable under the subject leases for that portion of the property taxes assessed against the land on which the leased property is located; and it is further,

ORDERED that the order and judgment in Action No. 12 is modified, on the law, by deleting (1) the provision thereof which granted that branch of the motion of the plaintiffs Reckson Associates and HMCC Associates which was for summary judgment declaring that they are not liable for that portion of the property taxes assessed against the land on which the leased property is located, and substituting therefor a provision denying that branch of their motion, and (2) the provision thereof which denied that branch of the motion of the plaintiffs Reckson Associates and HMCC Associates which was for summary judgment declaring January 28, 1989, to be the "rent commencement date" of the parcel C lease and substituting therefor a provision granting that branch of their motion; as so modified the order and judgment in Action No. 12 is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County for (1) entry of an appropriate amended judgment, inter alia, declaring January 28, 1989 to be the "rent commencement date" of the parcel C lease, and (2) a hearing on the issue of whether the plaintiffs are liable under the subject leases for that portion of the property taxes assessed against the land on which the leased property is located; and it is further,

ORDERED that the orders and judgments in the remaining actions are affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

Between 1979 and 1986 the County of Nassau executed 22 substantially similar leases with the plaintiffs, requiring them to develop portions of a County-owned property known as Mitchel Field for commercial uses. The leases provided, inter alia, that the County would take no steps to place the demised premises on the tax rolls until a "rent commencement date", defined generally as 18 months after the necessary zoning variances for the agreed-upon use had been obtained. After the rent commencement date, the lessees would be responsible for all taxes "which * * * may * * * be charged, levied, * * * become due and payable, or liens upon or for or with respect to the Building, appurtenances or equipment".

The plaintiffs duly paid those taxes levied after the rent commencement date as provided in their respective leases. However, on August 27, 1988, the County took steps to collect taxes for the period between the execution of the leases and the applicable rent commencement dates. The plaintiffs brought these actions, inter alia, to declare the retroactive assessments null and void.

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