Nicolette v. Village of Clyde

• Decision Date: 21 May 1970
• Citation: 310 N.Y.S.2d 896,34 A.D.2d 202
• Parties: Pasquale A. NICOLETTE and Mary Nicolette suing on behalf of themselves and all other veteran-property owners residing in the Village of Clyde, New York, entitled to and claiming a veteran's tax exemption pursuant to section 458 of the New York Real Property Tax Law, similarly situated, Plaintiffs, v. The VILLAGE OF CLYDE, New York, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 896

310 N.Y.S.2d 896

34 A.D.2d 202

Pasquale A. NICOLETTE and Mary Nicolette suing on behalf of themselves and all other veteran-property owners residing in the Village of Clyde, New York, entitled to and claiming a veteran's tax exemption pursuant to section 458 of the New York Real Property Tax Law, similarly situated, Plaintiffs, v. The VILLAGE OF CLYDE, New York, Defendant.

Supreme Court, Appellate Division, Fourth Department.

May 21, 1970.

Michaels, Cuddy & Bertrand, Auburn, for plaintiff; Milan M. Durgla, Auburn, of counsel.

John C. Carmer, Jr., Clyde, for defendant.

Before DEL VECCHIO J.P. and MARSH, MOULE, BASTOW and HENRY, JJ.

OPINION

MOULE, Justice.

This is an action commenced pursuant to CPLR 3222 by submission of an agreed statement of facts. The plaintiffs, Pasquale and Mary Nicolette, are owners of a house and lot located at 267 Glasgow Street, Clyde, New York and are eligible for a veteran's real property tax exemption under Real Property Tax Law § 458 in the amount of $5,000.

In this case of first impression, the parties seek a declaration as to the correct method of applying a veteran's exemption under RPTL § 458 and computing the tax due so far as the plaintiffs and others similarly situated are concerned.

The property at 267 Glasgow Street has a full value of $13,700. Prior to 1969 a 40% Equalization rate was applied to this full value to arrive at an assessed value of $5,480. The veteran's exemption of $5,000 was subtracted from the assessed value leaving a taxable balance of $480. In 1969 the veteran's exemption of $5,000 was subtracted from the full value of $13,700 leaving a 'net full value' of $8,700. A 40% Equalization rate was applied to this figure to arrive at a 'taxable assessed value' of $3,480.

RPTL § 458, subdivisions 1 and 1(2) provide for a veteran's exemption not to exceed $5,000. Subdivisions 1(1) and 1(3) set forth the manner in which the exemption is to be applied. They provide as follows:

' § 458 1(1) Such property shall be assessed in the same manner as other real property in the tax districts. At or before the meeting of the assessors to hear the complaints concerning assessments, a verified application for the exemption of such real property from taxation may be presented to them by or on behalf of the owner thereof, which application must show the facts on which the exemption is claimed, including the amount of eligible funds used in or toward the purchase of such property.' (Emphasis added)

'1(3) If the assessors are satisfied that the applicant is entitled to any exemption, They shall make appropriate entries upon the assessment-roll opposite the description of such property and subtract the total amount of such exemption from the total amount assessed pursuant to the provisions of paragraph one of this subdivision. Such entries shall be made and continued in each assessment of the property so long as it is exempt from taxation for any purpose. Such real property, to the extent of the exemption entered by the assessors, shall be exempt from state, county and general municipal taxation, but shall be taxable for local school purposes. The provisions herein, relating to the assessment and exemption of property purchased with eligible funds apply and shall be enforced in each municipal corporation authorized to levy taxes.' (Emphasis added)

The words 'and subtract the total amount of such exemption from the total amount assessed pursuant to the provisions of paragraph one of this subdivision' were added to RPTL § 458, subdivision 1(3) (then Tax Law § 4(5) (3)) by Chapter 953 of the Laws of 1958. The Governor's Memoranda on Bills Approved states as to Chapter 953:

'The purpose of this bill is to clarify the existing provisions of the Tax Law relating to the computation of a veteran's exemption, by requiring that the amount of such exemption shall be deducted from the assessed value of his real property, without regard to equalization factors.' (1958 N.Y. Legislative Annual 495)

The State Comptroller has issued an opinion that 'Veterans' exemptions should be deducted from the assessed value of real property and not from the equalized value.' (19 Op.St.Comp. 67, 68) The defendant has submitted two informal memoranda of the State Board of Equalization and Assessment which indicate that veterans' exemptions should be deducted from the full value of property and not the assessed value.

RPTL § 458 clearly states that all property shall be assessed in the same manner and that the...