Matter of Jack Minkoff v County of Nassau

Matter of Minkoff v County of Nassau 2006 NY Slip Op 04290 [29 AD3d 1000] May 30, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

In the Matter of Jack Minkoff et al., Appellants,
v
County of Nassau et al., Respondents, et al., Respondents.

—[*1]In a proceeding, inter alia, pursuant to CPLR article 78 in the nature of mandamus to compel the County of Nassau, Board of Assessors of Nassau County, and Nassau County Assessment Review Commission to limit the increase in assessments of class one real property as reflected on the April 1, 2003 final assessment roll so that the increases comply with RPTL 1805 (1), the petitioners appeal from (1) an order of the Supreme Court, Nassau County (Winslow, J.), dated December 4, 2003, which denied their motion for recusal, and (2) a judgment of the same court dated December 9, 2003 which denied the petition and dismissed the proceeding.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents-respondents.

The appeal from the intermediate order must be dismissed because an order made in a CPLR article 78 proceeding is not appealable as of right (see CPLR 5701 [b] [1]) and, in any event, [*2]the right of direct appeal therefrom terminated with the entry of final judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The court providently exercised its discretion in denying the petitioners' motion for recusal (see Matter of Briffel v County of Nassau, 31 AD3d 79 [2006] [decided herewith]; Matter of Borrell v Hanophy, 246 AD2d 647 [1998]; Berman v Herbert Color Lithographers Corp., 222 AD2d 640 [1995]).

The court properly determined that the County of Nassau, Board of Assessors of Nassau County, and Nassau County Assessment Review Commission complied with the limitations set forth in RPTL 1805 as applied to the petitioners' respective properties (see Matter of Briffel v County of Nassau, supra).

The petitioners' remaining contentions are without merit. Florio, J.P., Krausman and Mastro, JJ., concur.

Spolzino and Lifson, JJ., dissent, in part, and vote to dismiss the appeal from the order, reverse the judgment, grant the petition to the extent of remitting the matter to the Supreme Court, Nassau County, for the entry of a judgment directing the respondents-respondents to reduce those assessments that fail to comply with RPTL 1805 (1), otherwise deny the petition, and deny the motion for the reasons stated in their dissents in Matter of Briffel v County of Nassau, 31 AD3d 79, 86, 97 [2006], Spolzino and Lifson, JJ., dissenting] [decided herewith]).