Hoffman v City of Olean
Annotate this CaseDecided on June 21, 2012
Supreme Court, Cattaraugus County
John E. Hoffman and JoANN QUINN-HOFFMAN, Petitioners,
against
The City of Olean, THE COUNTY OF CATTARAUGUS, Respondents.
79951
JOHN RICHARD STREB, ESQ.
2953 Elmwood Avenue
Kenmore, New York 14217
For the Petitioners
WENDY PETERSON, ESQ.
Community Bank Building
Olean, New York 14760
For the City of Olean
ERIN BRADY SWENSON, ESQ.
41 Main Street
Salamanca, New York 14779
For the County of Cattaraugus
Larry M. Himelein, J.
Petitioners are residents of the City of Olean. Because of what they considered excessive water and sewer bills, petitioners claim they capped the water supply line to their home in May 2005 and began using water from a well on their property. Nonetheless, the City continued to send them water and sewer bills, which they did not pay. After the unpaid bills were paid by the
County, they were added to petitioners' County tax bill until Cattaraugus County commenced a foreclosure action against petitioners. Petitioners then paid the overdue amounts.
In February of this year, petitioners filed an Article 78 petition against Olean and [*2]Cattaraugus County. While the bulk of the 111 paragraph petition relates to Olean, there is also a claim that Cattaraugus County acted as Olean's agent "in placing the City Relevy on the tax bills and bringing the foreclosure action" (petition, ¶ 89). Further, petitioners claim that Daniel Martonis, the Cattaraugus County Director of Real Property Services, failed to perform his duties under Real Property Tax Law § 556 (Id., ¶ 90).
Cattaraugus County now moves to dismiss the petition for failing to state a cause of action against the County. Because the court agrees with the County's contentions, the petition is dismissed as to Cattaraugus County.
Petitioners' first claim against the County is that it acted as the City's agent when it placed the relevy on the County tax bills and brought a foreclosure action. When petitioners refused to pay their water and sewer bills and city taxes, Olean sent the County an account of those unpaid amounts. As required by Real Property Tax Law (RPTL) § 936, the County paid Olean the unpaid amounts and relevied these amounts on petitioners' County tax bills. When those amounts remained unpaid, the County Treasurer instituted foreclosure proceedings against the property, as he is required to do by RPTL §§ 1120-1125.
Petitioners ignore the fact that the law imposes these duties on the Treasurer and argue that the County "cannot claim it is immune for placing on its County tax bill a charge it knows to be false on the notion that the County is just a ministerial robot . . ." (affidavit of John Richard Streb, verified March 29, 2012, pp 10-11). Whether the charges are "false" will be determined in the litigation between petitioners and the City. It is not the County's responsibility to decide the legitimacy of the charges and no amount of name-calling can bring the County's mandated ministerial actions within the purview of Article 78. The County is not required to involve itself in a substantive legal dispute between the City and a City resident and I do not find petitioners' analogy to the mortgage foreclosure cases at all compelling and note further that some of the cases cited have been reversed.
Petitioners' other contention, and the one they spend far more time discussing, is that Daniel T. Martonis, the County Director of Real Property Services, failed to perform an investigation of petitioners' RPTL § 556 request for a tax refund and merely rubber-stamped the City's charges. The first issue is whether § 556 is applicable here.
RPTL § 556 (2) (b) provides a mechanism for a property owner who is subject to an outstanding tax and who feels that the tax, or a part of it, is "attributable to an unlawful entry, a clerical error, or an error in essential fact," may file an application to the county director of real property tax services, for a credit of the tax, or the part of the tax that was wrongly billed. "Unlawful entry", "[c]lerical error", and "[e]rror in essential fact" are defined in RPTL § 550 (7), (2), and (3) respectively.
An unlawful entry under RPTL 550 (7) includes an entry of the valuation of property that is wholly exempt from taxation (subd. a); an entry which is outside the assessing agency's boundaries (subd. b); an entry made by one without the authority to do so (subd. c); or an entry that exceeds the assessment of the property (subd. d and e). None of these apply here.
A clerical error under RPTL 550 (2) includes a mistake in transmission (subd. a); a mathematical error (subd. b and d); an incorrect entry of assessed valuation (subd. c); "a mistake in the determination or transcription of a special assessment or other charge" (subd. e); a duplicate entry (subd. f); an arithmetic mistake by the assessor (subd. g); the inclusion of a [*3]relevied tax that has been paid (subd. h); or a mistake in the transcription [emphasis supplied] of a relevied tax (subd. i). Again, none of those are applicable here.
An error in essential fact under RPTL 550 (3) means the inclusion of an improvement that had been removed or destroyed (subd. a); the inclusion of an improvement that was not present or was on a different parcel (subd. b); an incorrect amount of acreage (subd. c); the omission of an improvement (subd. d); an incorrect entry of a partial exemption (subd. e); or an entry which is incorrect because of a misclassification of the property (subd. f). Again, none of these appear to be present in this case and thus, the court concludes that RPTL 556 is not applicable here.
Even assuming that § 556 is meant to encompass a challenge such as this, petitioners' complaints against Martonis are exaggerated and beyond the scope of an Article 78 proceeding. Petitioners argue that Martonis failed to "investigate the circumstances of the claimed unlawful entry, clerical error or error in essential fact to determine whether the error exists" (see RPTL
556 [4] [a]).
When the complaint came in, Martonis sent a lengthy email to Thomas Windus, Olean's Director of Public Works. Petitioners quote only a snippet from the email in an attempt to make it appear that Martonis sought to simply rubber-stamp the City's determination. To the contrary, Martonis' email was open-ended and not leading. Windus replied with an email of his own, explaining that this issue had come up years earlier, that Hoffman would not allow anyone onto his property to read the meter, that the City Council passed a law requiring all properties using potable water to connect to the City system, and that Hoffman failed to cooperate in any manner with the City. This provided ample reason for Martonis to recommend that petitioners' request for a refund be denied.
Once the County completes its investigation, the director is to transmit a written report of his investigation, along with his recommendation, to the original taxing body (RPTL 556 [4] [b]). Petitioners argue that Martonis "denied" their request rather than made a recommendation. While Martonis incorrectly wrote to the Mayor of Olean that he "denied" the application, he wrote on the official form that he recommended denial. His letter quoted the RPTL § 556 language about the City needing to grant or deny the application. Martonis did not usurp the City's authority. Moreover, any error in what Martonis did would be legally insignificant because Martonis' recommendation is not even binding on the City.
Accordingly, the motion to dismiss the petition against Cattaraugus County is granted, with costs to the County. Counsel for the County should submit an order, on notice.
Dated:Little Valley, New York
June 21, 2012
_________________________
Hon. Larry M. Himelein
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