Matter of Mathen v Board of Assessors of County of Nassau
Annotate this CaseDecided on June 14, 2005
Supreme Court, Nassau County
In the Matter of the Application of George Mathen, STEVEN HAMBURGER, GARY STAIANO, JANE HENDEL, KAREN LUM, WILLIAMS FERNANDEZ, JOSEPH HERSHENOV, JANI COOPERBERG, SHEILA STROOCK, JACK SHEPARD, EVAN LENK, OWEN RUMELT, DVORA HAIMSON, KURT KONRAD, STUART SMOLLER, JOE CHERUBIN, ANTHONY BOAKYE-YIADOM, ROBERT SCHWARTZ, DAVID ZIVOTOFSKY, MARTIN LEVI, HENRY ROWLEY, HOWARD BERKE, WILLIAM HENRY, JOSE B. MARTINEZ, NAZZARENO ROVITO, PIETRO SARRO, EDWARD YODOWITZ, MARGARET FOHRER, JAMES VAIRO, SOUTH PLACE PARTNERS, MOSHE GANS, DENISE DENNISON, ELISA HINKEN, JOSHUA GUTTMAN, JEFFREY VOGEL, MELVIN HILLER, RICHARD SCHMEELK, DVORA PERLOW and LINDA MOGRABI, Petitioners,
against
Board of Assessors of the County of Nassau and THE BOARD OF ASSESSMENT REVIEW OF THE COUNTY OF NASSAU, Respondents.
1200/05
Kenneth A. Davis, J.
With one exception, petitioners are fifty-eight (58) residential homeowners who have availed themselves of the provisions of Article 7 Title 1-a of the Real Property Tax Proceeding Law (Small Claims Assessment Review) in challenging their 2003/04 Nassau County real property assessments. The majority received no reduction; those who did received less than the amount requested. The unifying factor among the petitioners is their mutual representation by present counsel and the fact that all of the hearings (see RPTL §732) were conducted before Hearing Officer Evelyn J. Fasulo (see RPTL §732). The order to show cause instituting the proceeding sets forth three (3) requests. First, that all decisions rendered by Ms. Fasulo be voided. Second, that the matters be remanded to a new hearing officer. Third, that the clerk reassign all matters presently scheduled before Ms. Fasulo to another hearing officer. A request for a temporary restraining order staying counsel's proceedings before Ms. Fasulo was refused.
There are two aspects to this proceeding; i.e., the relief sought against Ms. Fasulo personally, and the requests addressed to the determinations forming the basis for this proceeding.
In effect, what counsel is seeking with respect to Ms. Fasulo is an order disqualifying her from acting as a small claims hearing officer. The claim is based upon what counsel contends is her incompetency and/or bias in favor of the County of Nassau as evidenced by the fact that his clients have been unsuccessful in the proceedings before her together with an affidavit from another homeowner's tax representative in which it is indicated that Ms. Fasulo's decisions "did not reflect the evidence submitted by both sides."
This Court lacks the power to grant the relief sought with respect to Ms. Fasulo. The position of small claims hearing officer was created by RPTL §731 and is subject to rules set forth in the Uniform Rules for Trial Courts (see 22 NYCRR §202.58(d)). Section 731 provides that the Chief Administrator of the Courts shall establish a "panel of small claims hearing officers" to whom valuation challenges are to be referred for hearings. It is not disputed that Ms. Fasulo has been approved by the Chief Administrator for membership in such panel. It is also conceded that the matters referred to her were done in accordance with the provisions of 22 NYCRR §202.58(d). Under the circumstances, the appropriate person to whom a request that a panel member be removed and/or that an established assignment procedure be suspended is the Chief Administrator. Moreover, counsel has seen fit to seek the relief it has without providing the affected hearing officer being before the Court. While such failure is not fatal from the standpoint of the substantive issues raised by the challenges to her decisions (see Tyrell v. Town of Greenvale, 108 AD2d 1092), common sense and fair play mandate that she be offered an [*2]opportunity to defend herself where the relief sought will adversely affect her right to continue in the position she holds.
Before the merits of the individual claims can be considered, a procedural objection must be considered. In its answer, respondent has challenged the propriety of the multi-party petition procedure adopted by counsel. Such objection is well taken.
It is axiomatic that the uniting of multiple plaintiffs as petitioners in an action or special proceeding can only be justified if a commonality of legal or factual issues exists (see CPLR §1002). To splinter causes of action under such circumstances would serve no useful purpose either from the standpoint of the litigants or the court. Here, there is no such unifying factor. The petitioners are united only by the fact that counsel represented them unsuccessfully at their individual SCAR hearings. Of necessity, the validity of an individual homeowner's claim in this proceeding is a function of what transpired at the individual hearing and the determination thereafter. Each decision must be considered separately and not, as counsel would appear to argue, be considered in the context of all other decisions rendered in counsel's matters. Unstated but no doubt underlying counsel's claims is the proposition that it would be impossible for the hearing officer to have rejected the reductions sought by their clients in the number of cases she did without her being biased in favor of the County or against them. While it might be true that in the SCAR field, a substantial number of challenges result in reductions after hearings, that fact does not, of necessity, give rise to a conclusion that Ms. Fasulo was biased in reaching her conclusions. The issue of whether a particular result was based on "substantial evidence" (see CPLR §7803(4)) is an individual one, not a collective one.
The issue of bias is more appropriately raised in proceedings brought pursuant to CPLR Article 75 (see CPLR §7511(ii)) where, as here, an award is reviewable on the basis of the evidence before the decision-maker and the decision reached measured against such evidence.
In reaching the determination with respect to severance, the Court has considered the holding in Agosh v. Cicero Bd. of Assessment Review (150 Misc 2d 756) which counsel argues supports his position. However, there a common issue of law existed, i.e.; could the hearing officer consider evidence offered to impeach the state's residential assessment ratio. Here no such common issue exists.
In addition to the substantive arguments in favor of severance based upon the nature of the claims, an additional reason exists for such a procedure. Counsel's clustering of their collective certiorari clients would result in a procedural and practical nightmare were the petition considered in its present state. As noted, counsel assumes that they will be 100% successful and a judgment will be entered vacating the decisions and remanding the matters to a new hearing officer. Such an assumption does not allow for a situation where a number of determinations are upheld, a number vacated and remanded and others referred to the Appellate Division pursuant to the provisions of CPLR 7804(g) because this Court lacks jurisdiction to determine issues of "substantial evidence." (see Mtr of Surway Towers Inc. v. Martinez, 8 AD3d 490). Were [*3]drafting of a single judgment even possible, the resulting tome would, of necessity, have to be filed in the 50+ individual AR No.s. At the very least, this matter could not proceed without counsel serving an amended petition separately stating and numbering the separate causes of action and even then, the problem would not be resolved.
Accordingly, it is the determination of this Court that so much of the petition as seeks to disqualify Hearing Officer Evelyn J. Fasulo from hearing small claims assessment proceedings and directing a reassignment of all cases pending before her is denied without prejudice to appropriate proceedings addressed to her qualifications to be a member of the panel established pursuant to RPTL §732.
Respondents' request for a severance of the claims of individual petitioners is granted and all claims other than the petition as it applies to George Mathen, the lead petitioner, are severed with a direction that the several petitioners serve and file individual petitions bearing separate index numbers within fifteen (15) days after service of a copy of this order in default of which such claims shall be deemed abandoned.
With respect to the claims of George Mathen, that petitioner is directed to serve an amended petition setting forth his arguments addressed to the propriety of the challenged determination within fifteen (15) days after service of a copy of this order in default of which such claim shall be deemed abandoned.
This decision constitutes the order of the court.
Dated: June 14, 2005 __________________
J.S.C.
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