Matter of Brewster v Wright

Matter of Brewster v Wright 2007 NY Slip Op 08604 [45 AD3d 1369] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of James D. Brewster et al., Respondents, v Linda A. Wright, Appellant, et al., Respondents.

—[*1] Woods Oviatt Gilman LLP, Rochester (F. Michael Ostrander of counsel), for respondent-appellant.

James D. Brewster, petitioner-respondent pro se.

Cyrus Waterman, petitioner-respondent pro se. Terry K. Rigby, petitioner-respondent pro se.

Appeal from an amended judgment (denominated order) of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered July 19, 2006 in a proceeding pursuant to CPLR article 78. The amended judgment granted in part the petition.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: Respondent Linda A. Wright, individually, is the sole appellant from an amended judgment reducing petitioners' real property assessments for the year 2005. Wright previously was the assessor for respondent Town of Conquest, but she resigned from that position in February 2007 and has not appealed in her capacity as assessor. We thus conclude that she is not aggrieved by the amended judgment and that the appeal therefore must be dismissed (see CPLR 5511; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488 [1978]). Although the amended judgment states that Wright violated the constitutional rights of petitioners by engaging in selective assessment of their properties, the amended judgment imposes no liability upon Wright and, thus, she has not suffered the requisite "injury in fact" (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991]). Any prospective harm that Wright allegedly may suffer in the event that petitioners elect to commence an action pursuant to 42 USC § 1983 against her is too speculative to form the basis of an injury (see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 214-215 [2004]). Present—Martoche, J.P., Centra, Peradotto, Green and Pine, JJ.