Greenberg v. Assessor of Scarsdale

• Decision Date: 22 October 2014
• Docket Number: 2012-09046, Index Nos. 23003/08, 11854/09, 22506/09, 30011/09, 25721/10.
• Citation: 996 N.Y.S.2d 48,2014 N.Y. Slip Op. 07160,121 A.D.3d 986
• Parties: In the Matter of Steven L. GREENBERG, petitioner, v. ASSESSOR OF TOWN OF SCARSDALE, et al., respondents. (Matter No. 1) Steven L. Greenberg, appellant, v. Town of Scarsdale, et al., respondents. (Matter No. 2) In the Matter of Steven L. Greenberg, petitioner, v. Town of Scarsdale, et al., respondents. (Matter No. 3) In the Matter of Steven L. Greenberg, appellant, v. Town of Scarsdale, et al., respondents. (Matter Nos. 4 and 5).
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 986
996 N.Y.S.2d 48
2014 N.Y. Slip Op. 07160

In the Matter of Steven L. GREENBERG, petitioner
v.
ASSESSOR OF TOWN OF SCARSDALE, et al., respondents. (Matter No. 1)
Steven L. Greenberg, appellant
v.
Town of Scarsdale, et al., respondents. (Matter No. 2)
In the Matter of Steven L. Greenberg, petitioner
v.
Town of Scarsdale, et al., respondents. (Matter No. 3)
In the Matter of Steven L. Greenberg, appellant
v.
Town of Scarsdale, et al., respondents. (Matter Nos. 4 and 5).

2012-09046, Index Nos. 23003/08, 11854/09, 22506/09, 30011/09, 25721/10.

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

Oct. 22, 2014.

996 N.Y.S.2d 49

Steven L. Greenberg, Scarsdale, N.Y., appellant pro se.

Rice & Amon, Suffern, N.Y. (Terry Rice of counsel), for respondents Town of Scarsdale, Village of Scarsdale, and Nanette J. Albanese.

Robert F. Meehan, White Plains, N.Y. (James Castro–Blanco and Thomas G. Gardiner of counsel), for respondents David B. Jackson and Westchester County.

Rutherford & Christie, LLP, New York, N.Y. (Caroline Lineen of counsel), for respondent Scarsdale Union Free School District.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.

Opinion

121 A.D.3d 986

In a hybrid action, inter alia, to recover damages for violation of constitutional rights pursuant to 42 U.S.C. § 1983 and proceeding, inter alia, pursuant to CPLR article 78 to compel the approval of certain real property tax refund applications made by the plaintiff/petitioner (Matter No. 2), a related proceeding, among other things, pursuant to Real Property Tax Law article 7 to review certain real property tax assessments (Matter No. 4), and other related proceedings, Steven L. Greenberg, the plaintiff/petitioner in Matter No. 2 and the petitioner in Matter No. 4, appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Westchester County (LaCava, J.), entered July 25, 2012, which, inter alia, sua sponte, directed the

121 A.D.3d 987

dismissal, for lack of ripeness, of the complaint/ petition in Matter No. 2 and so much of the petition in Matter No. 4 as alleged causes of action pursuant to CPLR article 78 relating to certain tax refund applications, in effect, denied, as academic, the defendants/respondents' motions to dismiss the complaint/petition in Matter No. 2, and, in effect, granted those branches of the respondents' motion which were to dismiss, as time-barred, so much of the petition in Matter No. 4 as asserted causes of action pursuant to RPTL article 7 related to tax years prior to 2009 and to dismiss the remainder of that petition on the ground of improper joinder of claims.

ORDERED that the appeal from so much of the order as, sua sponte, directed the dismissal of the complaint/petition in Matter No. 2 and so much of the petition in Matter No. 4 as alleged causes of action pursuant to CPLR article 78 related to certain tax refund applications is deemed to be an application for leave to appeal from those portions of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof directing the dismissal of the first through ninth causes of action in Matter No. 2, and (2) by deleting the provision thereof, in effect, granting that branch of

996 N.Y.S.2d 50

the respondents' motion which was to dismiss, on the ground of improper joinder of claims, the causes of action in the petition in Matter No. 4 other than those that alleged causes of action pursuant to RPTL article 7 related to tax years prior to 2009, and substituting therefor provisions denying that branch of the motion and converting that matter into a hybrid proceeding and action, deeming the notice of petition in that matter to also be a summons, and deeming the petition to be the petition/complaint; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, so much of the order as, in effect, denied, as academic, the defendants/respondents' motions to dismiss the complaint/petition in Matter No. 2 is vacated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the complaint/petition in Matter No. 2 and the petition in Matter No. 4, including a determination on the merits of the defendants/respondents' motions to dismiss the complaint/petition in Matter No. 2.

Steven L. Greenberg (hereinafter the appellant) and his wife are the owners of a residence situated on two parcels of real property, designated as Lot 04.01.957 (hereinafter Lot 957) and Lot 04.01.993 (hereinafter Lot 993), respectively, and located in both the Town of Scarsdale and the Village of Scarsdale. In 2009, the appellant filed separate applications pursuant to

121 A.D.3d 988

RPTL 556 seeking refunds for...