Jacobowitz v. Bd. of Assessors for Town of Cornwall

• Decision Date: 30 July 2014
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Marlene JACOBOWITZ, appellant, v. BOARD OF ASSESSORS FOR TOWN OF CORNWALL, et al., respondents.

121 A.D.3d 294

990 N.Y.S.2d 551

2014 N.Y. Slip Op. 05544

In the Matter of Marlene JACOBOWITZ, appellant,

v.BOARD OF ASSESSORS FOR TOWN OF CORNWALL, et al., respondents.

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

July 30, 2014.

Jacobowitz and Gubits, LLP, Walden, N.Y. (Gerald N. Jacobowitz and Kara J. Cavallo of counsel), for appellant.

Ira S. Levy, Rye Brook, N.Y., for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

DICKERSON, J.

Introduction

The petitioner is one of several property owners in the Town of Cornwall who commenced tax certiorari proceedings beginning in 2006 to challenge the assessment of their properties. In 2012, while the proceedings were pending, the Board of Assessors for the Town of Cornwall (hereinafter the Board) and the Town of Cornwall (hereinafter together the Town respondents), requested permission from the petitioner to inspect the interior of her home for the purposes of appraisal. The petitioner refused. The Town respondents' attorney then made an application to the Supreme Court to compel the petitioner to grant the Town's appraiser access to her home to conduct an interior appraisal inspection. The petitioner, at the Supreme Court's direction, moved to preclude the Town's appraiser from conducting an interior inspection of her home, maintaining that it would violate her Fourth Amendment rights. In the order appealed from, the Supreme Court denied the petitioner's motion, granted the Town respondents' application, and directed that “an inspection of the subject premises shall occur within 30 days of the date of this order.”

We hold that the Town respondents bore the burden of demonstrating their entitlement to enter the petitioner's home over her objections. The petitioner bore no burden, in the first instance, to demonstrate her right to preclude the Town respondents from entering into her home against her will. The right to be free from unreasonable searches is granted by the Fourth Amendment, and made applicable to the States and their subdivisions by virtue of the Fourteenth Amendment ( see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), though this right is by no means absolute. By directing the petitioner to move to preclude the Town's appraiser from conducting an interior appraisal inspection of her home, the Supreme Court improperly shifted, from the Town respondents, the burden of demonstrating their entitlement to enter into the petitioner's home, to the petitioner to demonstrate her right to preclude the Town respondents from sending an agent into her home. We further hold that, based on a proper balancing of the Town respondents' interest in conducting the inspection against the petitioner's Fourth Amendment rights, and the privacy invasion that such a “search” would entail, the Town respondents failed to satisfy their burden.

Factual Background

The petitioner, Marlene Jacobowitz, owns a single-family residence in the Town of Cornwall. According to the petitioner, on or before May 1, 2006, the Board prepared a general assessment roll for the tax year 2006–2007. The Board assessed the petitioner's property at a value of $735,700, an increase of more than $96,000 from the previous tax year. The Town posted a notice alerting taxpayers and property owners to a forum scheduled for May 23, 2006, at which assessments could be reviewed.

The petitioner appeared at the scheduled forum, and objected to the assessment of her property. She claimed that the Board overvalued her property by $344,700. Additionally, the petitioner filed with the Town a verified statement alleging that the assessment of her property was both unequal and unlawful.

Ultimately, the Town respondents did not modify the assessment of the petitioner's property, and the assessment, as originally computed, was set forth in the Town respondents' completed tax assessment roll.

On or about July 27, 2006, the petitioner commenced a tax certiorari proceeding in the Supreme Court pursuant to RPTL article 7 by filing a notice of petition and petition to review the Town respondents' assessment of her real property for tax year 2006–2007. In her petition, she alleged that the assessment was illegal because it exceeded the fair market value of the property. She also alleged that the assessment was unequal because her property was assessed at a higher proportionate value than other property within the same tax district. In this regard, she asserted that her property was assessed at more than 100% of its fair market value, whereas the property of other owners in the tax district was not assessed at such a percentage of its fair market value.

The petitioner filed a second notice of petition and petition pursuant to RPTL article 7 on or about July 9, 2007, to challenge the general assessment roll for the tax year 2007–2008. This second petition advanced allegations substantially similar to those set forth in the 2006 petition.

According to the petitioner, and as reflected by the record before us, the Town respondents did not serve answers to her petitions. Accordingly, by operation of Real Property Tax Law § 712(1), the Town respondents were deemed to have denied the allegations in the petitions.

The petitioner's proceedings were stayed pending this Court's determination of the appeal in Matter of Leone Props., LLC v. Board of Assessors for Town of Cornwall, 81 A.D.3d 649, 916 N.Y.S.2d 149. That appeal, which was decided in February 2011, involved a different taxpayer's challenge to the Town respondents' assessments of real property as constituting unlawful selective assessments. In Leone, this Court concluded that the taxpayer established that the Town “improperly reassessed the subject property on a selective basis, both with regard to the assessor's reassessment methodology for the relevant tax years in general, and the implementation of that methodology in connection with the increased assessments for the subject property in particular” ( id. at 651, 916 N.Y.S.2d 149). Accordingly, this Court held, among other things, that the Supreme Court in that case properly granted the taxpayer's motion for summary judgment on its petitions ( id.).

Following this Court's decision in Leone, the Town respondents offered to settle disputes with various individual property owners by reducing the assessments on their properties to pre–2006 levels. Among all of the property owners, only the petitioner rejected the Town respondents' settlement offer, and elected to continue the instant proceedings seeking an assessment based on her property's fair market value.

After the petitioner's rejection of the proposed settlement, the Town respondents requested her permission to inspect the interior of her home for the purpose of appraisal. The petitioner refused.

The Town respondents, by their attorney, then made an application to the Supreme Court to compel the petitioner to grant access to the Town's appraiser to conduct an interior appraisal inspection of her home. In support of the application, the Town respondents asserted that “the petitioner does not get to dictate the terms under which [she] will permit the Town's appraiser to inspect the property.” They maintained that the petitioner, by seeking a reduction in the assessed value of her property based on market value for purposes of taxation, placed the market value of the property at issue, opening the door to review of the market value and necessitating an appraisal. The Town respondents urged the court that they must be permitted to prepare their defense, and asserted that denying access to the Town's appraiser would place them at a severe disadvantage, where only the petitioner's appraiser would have access to the petitioner's home.

The petitioner, at the Supreme Court's direction, moved to preclude the Town respondents from conducting an interior appraisal inspection of her home. In her motion papers, the petitioner argued that the Town respondents had the burden of showing their need to conduct the inspection, and that allowing the Town's appraiser to conduct an interior appraisal inspection without first obtaining a warrant constituted a warrantless search in violation of her Fourth Amendment rights.

The Order Appealed From

In the order appealed from, the Supreme Court denied the petitioner's motion. The court noted that the petitioner had improved her property between 2006 and 2011, as reflected by building permits obtained during that period. In light of the improvements and the fact that the proposed inspection was relatively close in time to the tax years at issue, the court concluded that there was no basis to prohibit the Town's appraiser from inspecting the interior of the premises. Additionally, the court granted the Town respondents' application, and directed that “an inspection of the subject premises shall occur within 30 days of the date of this order.”

Discussion

A property owner may challenge an assessment pursuant to RPTL article 7 on several grounds, including that “the assessment is excessive, unequal or unlawful” (RPTL 706[2]; seeN.Y. Const., art. XVI, § 2; RPTL former 306; W.T.Grant Co. v. Srogi, 52 N.Y.2d 496, 512, 438 N.Y.S.2d 761, 420 N.E.2d 953). “It 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 Leone Props., LLC v. Board of Assessors for Town of Cornwall, 81 A.D.3d at 650, 916 N.Y.S.2d 149 [internal quotation marks omitted]; see Matter of Weiner v. Board of Assessors &/or Assessor of Town/Vil. of Harrison, 69 A.D.3d 949, 950, 893 N.Y.S.2d 267;Matter of Mundinger v. Assessor of City of Rye, 187 A.D.2d 594, 595, 590 N.Y.S.2d 122).

“[A] locality's tax assessment is presumptively valid [,but] a petitioner may overcome that presumption by bringing forth substantial evidence that its property has been...