Bernard v. Rosenthal, 1

• Decision Date: 04 April 1991
• Docket Number: No. 1,No. 2,1,2
• Citation: 568 N.Y.S.2d 212,172 A.D.2d 931
• Parties: In the Matter of Kelly BERNARD, Petitioner, v. Joel ROSENTHAL, et al., Respondents. (Proceeding) In the Matter of BETHUNE GARDENS CORPORATION, Appellant, v. VILLAGE OF SPRING VALLEY, et al., Respondents. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 212

568 N.Y.S.2d 212

172 A.D.2d 931

In the Matter of Kelly BERNARD, Petitioner, v. Joel ROSENTHAL, et al., Respondents. (Proceeding No. 1.)

In the Matter of BETHUNE GARDENS CORPORATION, Appellant, v. VILLAGE OF SPRING VALLEY, et al., Respondents. (Proceeding No. 2.)

Supreme Court, Appellate Division,

Third Department.

April 4, 1991.

Bernard, Brustein & Abel, P.C. (Lorna Rissier Bernard, of counsel), New City, for appellant.

Michael A. Stone (Sammy Diament, of counsel), Spring Valley, for Village of Spring Valley, respondent.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and HARVEY, JJ.

HARVEY, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Kelly, J.), entered December 5, 1989 in Rockland County, which partially dismissed petitioner's application, in a proceeding (No. 2) pursuant to CPLR article 78, to compel respondents to separately assess two adjoining lots containing an apartment complex.

In 1979, petitioner Kelly Bernard acquired title at a Rockland County tax sale to certain real property located in the Town of Clarkstown and the Village of Spring Valley. This property is denominated on the pertinent tax maps as lot No. 15. In 1981, respondent Angeline Giles obtained title to the adjacent lot, lot No. 21, in a similar tax sale. A now-abandoned apartment complex straddles the two lots which had in the past been commonly owned by various corporations. Information in the record reveals that the two lots have apparently been separately assessed by the Town of Clarkstown and Rockland County. However, respondent Village of Spring Valley has long assessed lot Nos. 15 and 21 together as if they were one lot. Although the Village's assessor was informed that the lots were owned by two separate persons and was repeatedly asked to assess the two lots separately, the single assessments nevertheless continued and the Village tax bills for both lots were mailed solely to Bernard's residence, even though the names of both Bernard and Giles ¹ appeared on top of the bills.

Subsequently, after the Village began soliciting bids to demolish the vacant apartment complex, two CPLR article 78 proceedings were commenced (and later consolidated) seeking principally to halt the demolition of the building and requiring the Village to separately assess the two lots so that all taxes could be properly paid. Supreme Court annulled the determination to demolish the building and a bench trial was thereafter held to determine the various issues. Petitioner Bethune Gardens Corporation (hereinafter petitioner), a successor in interest to Bernard, was substituted as petitioner in this matter. Following the conclusion of evidence at trial, Supreme Court granted certain relief to petitioner but decided that the Village had not erred in assessing the two lots as a single tax lot. This appeal by petitioner followed.

We reverse. Based upon the evidence presented at trial, Supreme Court erred in not directing the Village to assess the two properties separately. Pursuant to RPTL 502(2), a tax assessment roll must provide, with respect to each separately assessed parcel of real property, in appropriate columns, the name of the owner and a description sufficient to identify the property. Further, under RPTL 502(3), the assessment roll is to contain a column for the entry with respect to each separately assessed parcel of the assessed valuation of the land exclusive of any improvements, followed by a column for the entry of the total assessed valuation. Regarding assessments, the law appears clear that:

Once a tract of land has been subdivided, unless it can be demonstrated that it would be impracticable to separately assess each subdivided lot, each lot should be separately assessed in order to insure the validity of taxes thereafter levied and any tax sales which might occur in the future for nonpayment of taxes (5 Opns Counsel SBEA No. 46).

Here, the Village's explanation for assessing the two parcels as one appears to be that, although it is undisputed that the lots were originally separate, the two parcels were merged by an unspecified act of the Village Planning Board in the early 1960s. It is not made clear whether this was a unilateral act on the part of the Village or was made pursuant to a formal request by the former owners that the subdivision be abandoned (see, RPTL 560; see also, Griffin v. Lamport Realty Co., 276 App.Div. 1103, 96...