Matter of Davidson v Nassau County Assessment Review Commn.

[*1] Matter of Davidson v Nassau County Assessment Review Commn. 2006 NY Slip Op 50637(U) [11 Misc 3d 1081(A)] Decided on February 22, 2006 Supreme Court, Nassau County Brennan, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 22, 2006
Supreme Court, Nassau County

MATTER OF ALAN DAVIDSON, Petitioner,

against

NASSAU COUNTY ASSESSMENT REVIEW COMMISSION AND NASSAU COUNTY DEPARTMENT OF ASSESSMENT, Respondent(s)



15195/05

Lawrence J. Brennan, J.

This is a proceeding brought pursuant to CPLR Article 78 by the petitioner Alan Davidson, for a judgment, inter alia, annulling a determination of the respondent Board of Assessment Review of the County of Nassau, dated August 26, 2005, which declined to review the petitioner's appeal from the denial of his application for a partial exemption for low income senior citizens pursuant to Real Property Tax Law §467.The petitioner Alan Davidson timely applied for, inter alia, a partial tax exemption for senior citizens pursuant to Real Property Tax Law §467, which application was denied by the Nassau County Assessment Department on April 15, 2005 (see, Real Property Tax Law §467).

In May of 2005, the petitioner sought administrative review of the

April 15,2005 denial by submitting an application "for correction of assessment," which was denied by County Assessment Review Commission ["the Commission"] on August 19, 2005.

The August 19, 2005 denial which affirmatively states that "[t]his is an issue

that the Assessment Review Commission can review" further advises that the petitioner's application was untimely since it was submitted after the purportedly applicable March 1, 2005, filing deadline (see, Real Property Tax Law §523-b [6][a]).

Notably, the record contains an essentially identical second denial letter, labeled "Final Determination on 2006-2007 Assessment," which again denies the application for correction on the ground that it was "filed after the March 1, 2005 deadline."

It is undisputed that the April 15, 2005 denial was not issued until after the March 1, 2005 deadline identified by the Commission as the date by which the administrative appeal was to be filed.

Thereafter, the petitioner retained counsel to commence the within proceeding pursuant to CPLR Article 78 to annul the Commission's August 26, 2005 denial on the grounds that, among other things, it was arbitrary and capricious, and that it was made in violation of lawful procedure (see, CPLR 7803). The petition should be granted to the extent indicated below.

Here, the record establishes and the respondents do not argue otherwise

(emphasis added) that the Commission denied the petitioner's exemption application on April 15, 2005, some six weeks after the allegedly applicable March 1, 2005 deadline.

The respondents have not shown how they can rationally deny the petitioner's application for administrative review as untimely, especially when their own dilatory conduct effectively precluded the petitioner from ever complying with the March 1, 2005 filing deadline upon which they rely as controlling.

The Court notes that the respondents' opposing papers neither discuss this anomalous circumstance, nor explain precisely how the reasoning provided in

their two August 2005 denial letters constitutes a rational exercise of administrative authority.

Indeed, the respondents' answer their only opposing submission does not address much less explain how the petitioner can be expected to file an administrative appeal prior to March 1, 2005 when the administrative decision to be challenged was not issued until some six weeks thereafter.

Further, the respondents have not argued that anything the petitioner did delayed the issuance [*2]of the April 15, 2005 denial. Nor have they established that the original exemption application itself was untimely filed, or supplied any facts whatsoever establishing why their April 15, 2005 denial was not issued prior to the March 1, 2005 deadline on which they rely.

Significantly, in analogous contexts, courts have precluded governmental entities from asserting the untimeliness of a claim or application when the municipality's own conduct was the principal cause of the delays which ensued (see generally, Bender v. New York City Health & Hospitals Corp., 38 NY2d 662, 668 [1976]; United Water New Rochelle, Inc. v. King, 18 AD3d 763, 767; Reed v. City of Syracuse, 309 AD2d 1195; Conquest Cleaning Corp. v. New York City School Const. Authority, 279 AD2d 546 cf., Jeshurin v. Liberty Lines Transit, Inc., 191 AD2d 412, 414).

Lastly, and upon the record presented, the Court agrees that the respondents' limitations defense lacks merit since it erroneously assumes that the petitioner is challenging the original April 15, 2005 denial a claim belied by the record, which establishes that the decision actually challenged is the Commission's own, self-described "final determination * * * on Assessment," dated August, 2005 (Ans.,¶ 5[a]).

The respondents' related claim that the petitioner failed to exhaust his administrative remedies similarly lacks merit, since the petitioner's inability to secure timely assessment review was attributable solely to the respondents' issuance of their determination after the claimed review deadline had passed (Ans.,¶ 9[a]).

The foregoing exhaustion theory also is inconsistent with the respondents' limitations claim, which apparently asserts that the petitioner should have taken a CPLR Article 78 proceeding directly from the underlying April 15, 2005 denial and that, in fact, no further exhaustion was actually required (Ans.,¶ 5[a]).

The Court has considered the respondents' remaining contentions, and concludes that none is sufficient to defeat the petitioner's entitlement to the relief

sought, as set forth above.

There are more than tens of thousands of residential and commercial assessment reviews filed annually in Nassau County.

Quite simply, there are litigated matters, such as this one, when governmental respondents should simply concede in good faith that an inadvertent oversight occurred, and that petitioner's right to review should be reinstated. [*3]

Notwithstanding, it is,

ORDERED, that the petition is granted to the extent that the subject matter is remitted to the respondent Assessment Review Commission, which shall render a substantive determination deciding the petitioner's appeal from the denial of his request for the subject senior citizen's tax exemption.

This shall constitute the Decision and Order of this Court.

Dated: February 22, 2006

HON. LAWRENCE J. BRENNAN

Acting Supreme Court Judge