County of Nassau v Fiorentino

[*1] County of Nassau v Fiorentino 2010 NY Slip Op 52349(U) [30 Misc 3d 1212(A)] Decided on December 20, 2010 District Court Of Nassau County, First District Knobel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2010
District Court of Nassau County, First District

County of Nassau, Plaintiff(s),

against

Sal Fiorentino, Defendant(s).



15924/09



Smith, Carroad, Levy & Finkel, LLP, Attorney for Plaintiff, 5036 Jericho Tpke, Commack, New York 11725, Sal Fiorentino, defendant pro se, 175 Donna Court, Lynbrook, New York 11563.

Gary F. Knobel, J.

DECISION AND ORDER AFTER TRIAL

Plaintiff County of Nassau ("County") seeks a judgment awarding it $500.00, together with interest, costs and disbursements, based upon the defendant's failure to timely file the Annual Survey of Income and Expenses ("ASIE") for the 2007 tax year on the subject property located at 659 Woodfield Road, West Hempstead (the "subject property") as required by Nassau County Administrative Code § 6-30 [e].

Section 6-30 of the Nassau County Administrative Code requires, upon the request of the Board of Assessors, that the owner of an income-producing property complete and return an ASIE for the taxable year (see § 6-30 [a], [b]). Section 6-30(e) provides a civil remedy, in the form of a civil action, to recover a monetary penalty not to exceed $500.00 in the event that any of the provisions set forth in section 6-30 are violated. The instant proceeding is that action.

The written request for an ASIE was sent by the County's Department of Assessment to defendant's attention at 124 Nassau Boulevard, West Hempstead ("Nassau Boulevard"), the mailing address listed on the deed of the subject property on Woodfield Road. The defendant does not own the Nassau Boulevard property.

The plaintiff contends that the defendant violated Section 6-30 of the NCAC by failing to file an ASIE for the subject property by the deadline of July 18, 2008, and therefore he is subject to the $500.00 civil penalty imposed upon him by a resolution of the Board of Assessors in 2008. [*2]

Defendant maintains that the only reason he did not file an ASIE for the 2007 tax year was that he never received the County's Department of Assessment's requests.

At trial, Ms. Cynthia Morrow, the ASIE project manager for the Department of Assessment, whose responsibilities include, sending, tracking and entering data collected from ASIEs on behalf of plaintiff, testified on behalf of the plaintiff that entries with regard to ASIEs are maintained under her supervision and control. Ms. Morrow testified that two letters requesting ASIE information for the 2007 tax year, one dated February 21, 2008, and the other dated June 17, 2008, stated in bold face that the letter was "REGARDING THE PROPERTY 659 WOODFIELD ROAD, WEST HEMPSTEAD NY 11552." The letters, Ms. Morrow maintained, were mailed to defendant at the Nassau Boulevard address because that was the mailing address on record with the Department of Assessment, as well as on the deed for the subject property. Ms. Morrow claimed that the defendant has never paid the $500.00 fine for noncompliance.

The defendant testified that the only he owns only two properties, the subject property and his personal residence, and does not own the Nassau Boulevard property. The defendant also stated at trial that he only learned of the civil penalty upon receipt of a letter dated November 2, 2008, which indicated that the non-payment of the $500.00 civil penalty had been referred to a private collection firm. This collection letter was also sent to the Nassau Boulevard address.

Defendant's argument regarding lack of notice raises due process concerns. "[W]here the interest of a property owner will be substantially affected by an act of government, and where the owner's name and address are known, due process requires that actual notice be given" ( Matter of McCann v. Scaduto, 71 NY2d 164, 176 [1987]). "There is no rigid rule establishing the adequacy of notice; instead, the reasonableness of notice depends upon a balancing of the interests of the State against the interests of the individual in actually being informed of proceedings affecting rights or property'" (Kennedy v. Mossafa, 291 AD2d 378, 379 [2d Dept 2002], affd 100 NY2d 1 [2003] [citations omitted]).

However, the burden of ensuring that the address of the property is correct and current rests with the property owner, and not the County, and "the County [i]s entitled to rely on the record information, with the taxpayer bearing the burden of keeping its mailing address current" ( S.A.B. Enters. v. Stewart's Ice Cream Co., 187 AD2d 875, 875 [3d Dept 1992]). Moreover, the County was under no obligation to investigate why mailing address on the deed of the subject property is different than the actual of the subject property (see Congregation Yetev Lev D'Satmar v. County of Sullivan, 59 NY2d 418, 426 [1983]).

The defendant, as the party who is in the best position to remedy a possible incorrect address for the subject property, did not take any steps to notify the County of the correct mailing address until after the 2007 tax year. Ultimately, the plaintiff received confirmation of his requested change of address by letter from the Department of Assessment dated September 9, 2010. Although the decision of this Court may appear, to the defendant, to be [*3]contrary to traditional notions of fairness, this Court is constrained by appellate court precedent.

Accordingly, the Court finds that the plaintiff has proved by a preponderance of the credible evidence and testimony that its entitlement to an award of $500.00, together with interest, costs and disbursements, due to defendant's failure to timely file the ASIE for tax year 2007.

Submit judgment directly to the Clerk of Civil Term.

The foregoing constitutes the decision and order of this Court

SO ORDERED:

Hon. Gary F. Knobel

District Court Judge

Dated: December 20, 2010