Conklin v. Town of Southampton

• Decision Date: 13 June 1988
• Docket Number: No. 1,No. 3,No. 2,1,2,3
• Citation: 529 N.Y.S.2d 517,141 A.D.2d 596
• Parties: Louise Cox CONKLIN, et al., Appellants, v. The TOWN OF SOUTHAMPTON, et al., Respondents. (Action) Jack NASH, et al., Appellants, v. The ASSESSOR OF The TOWN OF SOUTHAMPTON, et al., Respondents. (Action) Lawrence MARTIN, et al., Appellants, v. The ASSESSOR OF The TOWN OF SOUTHAMPTON, et al., Respondents. (Action)
• Court: New York Supreme Court — Appellate Division

Page 517

529 N.Y.S.2d 517

141 A.D.2d 596

Louise Cox CONKLIN, et al., Appellants, v. The TOWN OF SOUTHAMPTON, et al., Respondents. (Action No. 1)

Jack NASH, et al., Appellants, v. The ASSESSOR OF The TOWN OF SOUTHAMPTON, et al.,

Respondents. (Action No. 2)

Lawrence MARTIN, et al., Appellants, v. The ASSESSOR OF The TOWN OF SOUTHAMPTON, et al.,

Respondents. (Action No. 3)

Supreme Court, Appellate Division,

Second Department.

June 13, 1988.

Pelletreau & Pelletreau, Patchouge (Benjamin L. Herzweig, of counsel), Siegel Fenchel & Peddy, P.C., Garden City (William D. Siegel, of counsel), and Reilly, Like & Schneider, Babylon (Irving Like, of counsel), for all appellants.

David J. Gilmartin, Southampton (John C. Bivona, of counsel), for respondents.

Before MANGANO, J.P., and BRACKEN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In three actions, inter alia, to recover real estate taxes which the plaintiffs claim were illegally assessed, the plaintiffs in each action appeal from an order of the Supreme Court, Suffolk County (Cromarty, J.), entered August 26, 1987, which denied the motions of the plaintiffs in Actions No. 1 and 2 for class action certification.

ORDERED that the appeal by the plaintiffs in Action No. 3 is dismissed; and it is further,

ORDERED that on the appeal by the plaintiffs in Actions No. 1 and 2 the order is affirmed; and it is further,

ORDERED that the respondents are awarded one bill of costs.

These actions were commenced on behalf of the plaintiffs and other owners of real property in the Town of Southampton who are similarly situated. The plaintiffs in Action No. 2 alleged that their properties had been reassessed simply because the properties were the subject of recent sales. The plaintiffs in Action No. 1 alleged that their land had been reassessed as part of an ongoing "land equalization" program which was instituted by the defendants in the 1983-1984 tax year. As a result they claim that they will be forced to bear a disproportionate tax burden relative to the other property owners whose properties were not revalued within the same tax years. The plaintiffs in both Actions No. 1 and 2 claim that such selective assessments are discriminatory, unconstitutional and illegal. As a result, they are seeking declaratory and injunctive relief as well as the recoupment of taxes which were levied in the 1985-1986 tax year as a result of the alleged practices.

We hold that the Supreme Court properly found that class action certification was inappropriate in a case such as this where governmental actions are involved and subsequent plaintiffs will be adequately protected under the doctrine of stare decisis ( Matter of Martin v. Lavine, 39 N.Y.2d 72, 75, 382 N.Y.S.2d 956, 346 N.E.2d 794; Gandolfi v. City of Yonkers, 101 A.D.2d 188, 475 N.Y.S.2d 429, affd. 62 N.Y.2d 995, 479 N.Y.S.2d 517, 468 N.E.2d 699). The plaintiffs in Actions No. 1 and 2 contend that class action is a superior method of adjudicating the controversy because it would serve to protect certain members of the proposed class who paid the increased assessment without registering a protest. We find this contention unavailing. Generally, a tax voluntarily paid may not be recovered ( City of Rochester v. Chiarella, 65 N.Y.2d 92, 99, 490 N.Y.S.2d 174, 479 N.E.2d 810; Mercury Mach. Importing Corp. v. City of New York, 3 N.Y.2d 418, 424-425, 165 N.Y.S.2d 517, 144 N.E.2d 400; Adrico Realty Corp. v. City of New York, 250 N.Y. 29, 164 N.E. 732). Furthermore, we have previously held that nonprotesting taxpayers may not enhance their tax refund claims through the use of a class action (see, Gandolfi v. City of Yonkers, supra ).

The attempt to distinguish Gandolfi v. City of Yonkers (supra ) is unpersuasive. Since the action was commenced on behalf of all similarly situated taxpayers, the plaintiffs in Actions No. 1 and 2 claim that the commencement of the action constituted a notice of protest on behalf of all the proposed members of the class and the municipal agencies were put on notice that they may have to make refunds to all taxpayers whose properties had been reassessed during the period in question. We disagree.

As stated by the Court of Appeals in Mercury Mach. Importing Corp. v. City of New York (supra, at 426, 165 N.Y.S.2d 517, 144 N.E.2d 400):

"The practical reason for holding payments of illegal taxes without protest to be voluntary * * * stems from problems of municipal finance. Where protest has been interposed, the municipality is...