YCA Corp. v Peters

[*1] YCA Corp. v Peters 2009 NY Slip Op 52382(U) [25 Misc 3d 139(A)] Decided on November 19, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2008-2191 N C.

YCA Corp., Appellant,

against

Inge E. Peters, Respondent.

Appeal from a judgment of the District Court of Nassau County, Second District (David Goodsell, J.), entered July 22, 2008. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed without costs and the matter is remitted to the District Court for a new trial limited to determining the property tax assessment reduction obtained by plaintiff on behalf of defendant for the 2007/08 tax year.

Plaintiff commenced this commercial claims action to recover the balance due under a tax reduction representation agreement. On February 1, 2007, the parties had entered into an agreement pursuant to which defendant authorized plaintiff to file a property tax grievance for the 2007/08 tax year with the City of Glen Cove. Under the agreement, plaintiff's fees were to be calculated as a percentage of the tax savings, based on the "total assessment reduction obtained from the level of assessment published on the June 1, 2007 City of Glen Cove tentative assessment roll for the grievance year . . ." On June 1, 2007, the City of Glen Cove tentatively assessed defendant's property for the 2007/08 tax year at $1,975,600. On July 18, 2007, the City of Glen Cove Assessment Department issued an Assessment Department Determination, which on its face stated that it was made in response to the property tax grievance filed by plaintiff, and in which the City of Glen Cove reduced defendant's property assessment for the 2008 tax year by $475,600, to $1,500,000. Plaintiff's bill to defendant, for $1,037.26, was calculated based on defendant's 2007/08 tax year savings as a result of said assessment reduction.

Defendant had previously engaged Farrell Fritz, P.C. to represent her in grieving her property tax assessment for the 2006/07 tax year. On July 25, 2007, a hearing was held which confirmed a June 29, 2007 settlement reached between Farrell Fritz, P.C. and the City of Glen Cove respecting the 2006/07 tax year assessment on defendant's property, pursuant to which that assessment was reduced to $1,650,000. On September 13, 2007, Farrell Fritz, P.C. wrote to defendant advising her that the 2006/07 tax year assessment reduction was being carried over to the 2007/08 tax year. However, there was no statement from the tax assessor confirming the carryover of the tax reduction to the 2007/08 tax year.

After consulting with the Glen Cove Assessor for assistance with the calculations, defendant paid plaintiff $327.15, which sum was based on the tax savings for the 2007/08 tax year as reflected in a $150,000 assessment reduction (i.e., from $1,650,000 to $1,500,000), instead of a $475,600 assessment reduction (i.e., from $1,975,600 to $1,500,000). Plaintiff [*2]brought this action seeking to recover the difference between the fee it had charged and the sum paid by defendant.

The contract between the parties specified that plaintiff's fee would be based on defendant's tax savings obtained by plaintiff for the 2007/08 tax year resulting from the reduction in the assessment on defendant's property from the City of Glen Cove's June 1, 2007 tentative assessment. However, the contract failed to address the possibility that the June 1, 2007 assessment could be retroactively amended, or that the tentative assessment on plaintiff's property for the 2008 tax year could otherwise be reduced retroactively. The contract drafted by plaintiff should be construed as entitling plaintiff only to the reduction actually ultimately achieved by dint of his labor, not by any reduction which had already been achieved, retroactively, by others.

However, the only evidence adduced at trial on the question of whether the June 1, 2007 tentative tax assessment had been retroactively reduced was the statement of defendant's former counsel that the 2007 tax year assessment had been carried over to the 2008 tax year. This statement of tax reduction carryover, which did not come from the City of Glen Cove tax assessor, was not dispositive as to whether there was a tax reduction carryover for defendant's property tax assessment from the 2006/07 tax year, as that amount was ultimately determined, to the 2007/08 tax year.

Because there was inadequate support in the record for the District Court's effective reduction of plaintiff's fee, substantial justice was not done in this commercial claims action according to the rules and principles of substantive law (UDCA 1807-A). Accordingly, the judgment is reversed and the matter remitted to the District Court for a determination as to whether there was a carryover of the finally determined 2006/07 tax assessment on defendant's property to the 2007/08 tax year, and for a finding as to the amount of the effective tax assessment reduction obtained by plaintiff for defendant for the 2007/08 tax year.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 19, 2009