City of Troy v. Assessor of Brunswick

• Decision Date: 08 December 2016
• Citation: 2016 N.Y. Slip Op. 08280,145 A.D.3d 1241,43 N.Y.S.3d 210
• Parties: In the Matter of CITY OF TROY, Respondent, v. ASSESSOR OF the TOWN OF BRUNSWICK, et al., Appellants. (Proceeding No. 1.) In the Matter of City of Troy, Respondent, v. Assessor of the Town of Brunswick, et al., Appellants. (Proceeding No. 2.).
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1241

43 N.Y.S.3d 210

2016 N.Y. Slip Op. 08280

In the Matter of CITY OF TROY, Respondent,

v.ASSESSOR OF the TOWN OF BRUNSWICK, et al., Appellants. (Proceeding No. 1.)

In the Matter of City of Troy, Respondent,

v.Assessor of the Town of Brunswick, et al., Appellants. (Proceeding No. 2.).

Supreme Court, Appellate Division, Third Department, New York.

Dec. 8, 2016.

Tuczinski, Cavalier & Gilchrist, PC, Albany (Johnathan B. Tingley of counsel), for appellants.

Daniel G. Vincelette, Corporation Counsel, Troy, for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and AARONS, JJ.

McCARTHY, J.P.

Appeals (1) from an order of the Supreme Court (Elliott III, J.), entered November 2, 2015 in Rensselaer County, which, in proceeding No. 1 pursuant to RPTL article 7, partially granted petitioner's motion to compel discovery, and (2) from an order of said court, entered March 22, 2016 in Rensselaer County, which, in proceeding No. 2 pursuant to RPTL article 7, denied respondents' motion to partially dismiss the petition.

These are two related tax certiorari proceedings involving the same parties and property. In July 2014, petitioner commenced proceeding No. 1 pursuant to RPTL article 7 seeking a reduction of respondents' 2014 tax assessment of a portion of the Frear Park Golf Course, owned and operated by petitioner. In December 2014, petitioner served a notice to take deposition of respondent Assessor of the Town of Brunswick, along with discovery demands for certain materials. Respondents objected to these demands in January 2015, stating that "discovery in a tax certiorari proceeding is unavailable in the absence of a [c]ourt order."

Thereafter, petitioner moved to compel discovery and deposition. In an affirmation in support of the motion, petitioner asserted that the deposition was necessary for its claim of selective reassessment. In this regard, petitioner asserted that respondents did not conduct a municipal-wide revaluation or update for the 2014 assessment roll and did not review or revise the assessed values of two other golf course properties located in the Town. Petitioner further stated that respondents had denied its informal discovery request, "despite [p]etitioner's good faith effort to resolve this issue" with respondents' counsel. Supreme Court partially granted petitioner's motion to the extent that it sought to depose the Assessor, concluding that the information sought by the deposition was material and necessary in preparing for trial and would be limited to the underlying facts forming the basis for the assessment. Respondents appeal from this order.

In the interim, in July 2015, during the pendency of its discovery motion, petitioner commenced proceeding No. 2, also pursuant to RPTL article 7, challenging respondents' assessment of the same property in 2015, alleging, among other things, that the 2014 assessment constituted unlawful selective reassessment, which continued to be perpetuated on the 2015 assessment roll. The 2015 assessment of the property was identical to the 2014 assessment. Respondents moved to dismiss so much of the 2015 petition as asserted a claim for unlawful selective reassessment on the grounds that the claim was time-barred and precluded by the rule against claim splitting. Supreme Court denied the motion, holding that petitioner had timely asserted a selective reassessment claim in the 2014 petition. Respondents appeal from this order.

"A property owner may challenge an assessment pursuant to RPTL article 7 on several grounds, including that the assessment is excessive, unequal or unlawful" (Matter of Jacobowitz v. Board of Assessors for Town of Cornwall, 121 A.D.3d 294, 299, 990 N.Y.S.2d 551 [2014] [internal quotation marks and citations omitted] ). Furthermore, "[i]t is well settled that a system of selective reassessment that has no rational basis in law violates the equal protection provisions of the constitutions of the United States and the State of New York" (Matter of Carroll v. Assessor of City of Rye, N.Y., 123 A.D.3d 924, 925, 999 N.Y.S.2d 155 [2014] [internal quotation marks and citation omitted] ).

"[D]iscovery in a RPTL article 7 proceeding is governed by CPLR 408, pursuant to which trial courts have broad discretion in directing the disclosure of material and necessary information" (Matter of Niagara Mohawk Power Corp. v. City of Saratoga Springs Assessor, 2 A.D.3d 953, 954, 767 N.Y.S.2d 683 [2003] ; see Matter of Greens at Washingtonville, Ltd. v. Town of Blooming Grove, 98 A.D.3d 1118, 1119, 951 N.Y.S.2d 201 [2012] ). The trial court's decision to compel discovery is accorded deference on appeal and should not be disturbed absent an abuse of discretion as a matter of law (see Matter of 425 Park Ave. Co. v. Finance Adm'r of City of N.Y., 69 N.Y.2d 645, 647, 511 N.Y.S.2d 589, 503 N.E.2d 1020 [1986] ; Matter of General Elec. Co. v. Macejka, 117 A.D.2d 896, 897, 498 N.Y.S.2d 905 [1986] ). Additionally, to obtain discovery, a party must submit an affirmation showing "a good faith effort to resolve the issues raised by the [discovery] motion" or indicating "good cause" why no communications occurred between the parties in this regard (22 NYCRR 202.7 [a][2]; [c]; see Matter of Greenfield v. Board of Assessment Review for Town of Babylon, 106 A.D.3d 908, 908, 965 N.Y.S.2d 555 [2013] ).

A tax certiorari proceeding must be commenced "within [30] days after the final completion and filing of the assessment roll containing such assessment" (RPTL 702[2] ; see Matter of Niskayuna Citizens Unfairly Taxed v. Christensen, 134 A.D.2d 762, 763, 521 N.Y.S.2d 577 [1987] ). Furthermore, "a separate proceeding [must] be timely commenced to challenge each tax assessment for which relief is sought" (Matter of Scellen v. Assessor for City of Glens Falls, 300 A.D.2d 979, 980, 753 N.Y.S.2d 536 [2002] ). Finally, "[a] party invoking the narrow doctrine against [claim] splitting ... must show that the challenged claim raised in the second action [or proceeding] is based upon the same liability in the prior action [or proceeding], and that the claim was ascertainable when the prior action [or proceeding] was commenced" (Melcher v. Greenberg Traurig LLP, 135 A.D.3d 547, 552, 24 N.Y.S.3d 249 [2016] ; see Craig–Oriol v. Mount Sinai Hosp., 201 A.D.2d 449, 450, 607 N.Y.S.2d 391 [1994], lv. denied 85 N.Y.2d 804, 626 N.Y.S.2d 756, 650 N.E.2d 415 [1995] ).

Contrary to respondents' assertion, petitioner adequately pleaded an unlawful selective reassessment claim in its 2014 petition. Review of tax assessments is "remedial in character" and, therefore, pleadings in tax certiorari proceedings "should be liberally construed to the end that the taxpayer's right to have his [or her] assessment reviewed should not be defeated by a technicality" (Matter of Great E. Mall v. Condon, 36 N.Y.2d 544, 548, 369 N.Y.S.2d 672, 330 N.E.2d 628 [1975] [internal quotation marks and citation omitted]; cf. Matter of Frei v. Town of Livingston, 50 A.D.3d 1381, 1382, 857 N.Y.S.2d 283 [2008] ). The 2014 petition alleges that the challenged assessment is "unequal in that it has been made at a higher proportionate valuation than...