Pollak v. Board of Assessors of Nassau County

• Decision Date: 10 April 1978
• Citation: 62 A.D.2d 1019,403 N.Y.S.2d 762
• Parties: In the Matter of Henry POLLAK, Respondent, v. The BOARD OF ASSESSORS OF the COUNTY OF NASSAU, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 762

403 N.Y.S.2d 762

62 A.D.2d 1019

In the Matter of Henry POLLAK, Respondent, v. The BOARD OF ASSESSORS OF the COUNTY OF NASSAU, Appellant.

Supreme Court, Appellate Division, Second Department.

April 10, 1978.

Edward G. McCabe, County Atty., Mineola (Richard G. Fromewick and Jay M. Herman, Mineola, of counsel), for appellant.

Koeppel, Sommer, Lesnick & Martone, P.C., Mineola (Saul R. Fenchel and Bernard Sommer, Mineola, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, RABIN and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In consolidated proceedings pursuant to article 7 of the Real Property Tax Law to review certain real property tax assessments, the Board of Assessors of the County of Nassau appeals, as limited by its brief, from so much of (1) an order and judgment of the Supreme Court, Nassau County (MEADE, J.), entered July 11, 1977, as inter alia (a) amended the petitions to provide that the claimed value in each of said petitions is "$-0-" and (b) granted the petitioner summary judgment fixing the value of the premises at no value for each of the years under review and (2) a further order of the same court, dated September 14, 1977, as, upon reargument, adhered to the prior determination.

Appeal from the order and judgment entered July 11, 1977 dismissed. The order and judgment were superseded by the order made upon reargument.

Order dated September 14, 1977 reversed insofar as appealed from, on the law, with $50 costs and disbursements, and the branches of the petitioner's motion which sought (1) to amend the petitions and (2) summary judgment are denied.

The facts are not disputed. A portion of the petitioner's property was condemned in 1969. The petitioner thereafter filed protests and petitions seeking to reduce the assessed value of the remainder parcel, the subject property, to $21,000 for the assessment years 1971 through 1977. On petitioner's claim for consequential damages in the condemnation proceeding, the Court of Appeals held that his title had been rendered "unmarketable" by the deprivation of the legal right to access holding that "the absence of an explicit reservation of a right to access in the original appropriation may not be cured by provisional expedients, offered by and subject to the grace of the State" (Pollak v. State of New York, 41 N.Y.2d 909, 910, 394 N.Y.S.2d 617, 618, 363 N.E.2d 342). The Special Term granted petitioner's request for amendment of its petitions to reflect the determination by the Court of Appeals in the condemnation proceeding and granted the petitioner summary judgment, fixing the value of the premises at "$-0-" for each of the tax years under review.

A petitioner in a tax certiorari proceeding is limited to the relief set forth in his application to review the assessment before the Board of Review (Matter of Singer Co. v. Tax Assessor of Vil. of Pleasantville, 86 Misc.2d 631,...