Matter of Costigan v Assessor of the Vil. of Garden City

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Matter of Costigan v Assessor of the Vil. of Garden City 2022 NY Slip Op 34587(U) September 29, 2022 Supreme Court, Nassau County Docket Number: Index No. 610725/2020 Judge: Leonard D. Steinman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. NO. 610725/2020 INDEX 610725/2020 FILED: NASSAU COUNTY CLERK 10/05/2022 10:23 AM NYSCEF: 09/29/2022 RECEIVED NYSCEF: 09/29/2022 NYSCEF DOC. DOC. NO. NO. 52 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------X In the Matter of the Application of IAS·Part 7 . . Kathleen Costigan, Patrick Kelly, Diane Kelly, Index No. 610725/2020 Megan Corrao, Merle Paul-Barton , Michael Horn, Mot. Seq. No. 003 Jennifer Sullivan, Matthew Maione; Alexandra Maione, Babgen Galstian, Helene Galstian, James Willis, George Papazicos, Kali()pe Papazcios, Joseph Perini, Cathleen Perini, Eugene Drum, Eugenia Drum, John Clifford, Jin Lee, Susan Lee, Lilian Cassis, Paul Cassis, VirginiaDemille.,.Raffa, Michael Sutton, Patricia Sµtton, Joseph Holtzman & Adrienne Holtzman, Petitioners, -against-' DECISION AND ORDER THE ASSESSOR OF THE VILLAGE OF GARDEN CITY AND THE BOARD OF ASSESSMEN1' REVIEW OF THE VILLAGE OF GARDEN CITY, Respondents. .x LEONARD D. STEINMAN , J. The following submissions, in ,:1.dditioh to any memoranda of la;W and statements of ·facts· submitted by the parties, have been reviewed in preparing this Decision and Order: Petitioners' Notice of Motion &Exhibit ................. .......... , .... , .. , ..,.... , ............ .. 1 Respondents' Affirmation in Opposition & Exhibits ...... , .. , . ,..................... ,.............. 2 .. . ,·.R·.·epI·y .................. ... P etitioners. "' ... , ............. •.....• ;.•. ;...................................... ,.. ,........ ·3 Petitioner's 9/2 l/22Letter & Attachments ........ , .... , ................ ................ .... .4 Respondent's 9/22/22 Reply Letter ......... q . . . . . . . . . . . . . , ; • i ...... ................ ......... ;5 On May 22; 2020, a SCAR Hearing Officer rejected petitioners' challenge to the ResidentialA ssessmentRa te (RAR) utilized by the Village ofGarden City to assess petitioners' single-family homes for the 2019/20 tax year; Petitioners had argued that the [* 1] 1 of 5 FILED: NASSAU COUNTY CLERK 10/05/2022 10:23 AM INDEX NO. NO. 610725/2020 INDEX 610725/2020 NYSCEF: 09/29/2022 RECEIVED NYSCEF: 09/29/2022 NYSCEF DOC. DOC. NO. NO. 52 RAR, which was set by New York State;s Office ofReal Property Tax Services (ORPTS} and utilized by the Village for all homes within itsjurisdiction, was inflated. Petitioners brought this Article 78 ·proceeding to overturn the Hearing· Officer's determination, which this court dismissed pursuant to a decision and order .dated September 27, 2021 (the· ''decision"). Petitioners now move, pursuant to CPLR 2221 (d) to reargue this court's decision. For the reasons set forth below, the motion is granted and, upon reargument, the petition is granted and these matters are remanded to a h,earing officer for new hearings. Pursuant to CPLR 2221 (d), a motion Jar leave to re argue "'shall be based upon matters of factor law allegedly overlooked or misapprehended by the court in detertniningt he prior motion but shall not include any matters of fact not offered on the prior motion.'' CPLR 222l(d)(2). A motion to reargue is addressed to ''the Sound discretion ofthe court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law, or for some reason mistakenly arrived at its earlier decision;" Beverage Marketing USA, Inc. v. South Beverage Co,, Inc. 58 A.D.3d ·657 (2d Dept. 2009); CPLR 2221. But a motion for leave to reargue ''is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented." Mctzinov v: Re.Ile(,. 79 A.D.3d 979,980 (2d Dept. 2010), quotingMcG illv. Goldtnan,261 A.D.2d 593,594(2d Dept. 1999); see alsoAhmedv . Pannone, 116A.D.3d 802 (2dDept. 2014). In its decision, this court agreed with the heating officer artd the respondents that petitioners lacked standingto challenge the RAR in their SCARprocee ciings. It was mistaken. CfFairAsses sment Committee; LLCv. New YorkState Office ofRealPrope rty Services, 65 A.D.3d 1143 (2d Dept. 2009); To successfully challenge the equality of an assessment in a SCAR hearing, a petitioner must establish (i) the full market value of his or her properly and (ii}the. . . appropriate percentage of value tobe used to detennine the correct assessment. Pace v. Assessor of Town oflslip,252 A.D.2d 88, 90 {2dDept. 1998). "In a Small Claims Assessment Review proceeding challenging inequality of assessment, 'the homeowner is required to ptovethat his·or her properly is assessed at a higher percentage of full market --------- ---~---- ------9- ---n--F- ---5---· 2 of 5 [* 2] INDEX NO. NO. 610725/2020 INDEX 610725/2020 FILED: NASSAU COUNTY CLERK 10/05/2022 10:23 AM NYSCEF: 09/29/2022 RECEIVED NYSCEF: 09/29/2022 NYSCEF DOC. DOC. NO. NO. 52 value than either (1) the average ofall other property on the assessment roll or (2) the average ofresidential prnperty on the assessment roll'." Sofia v. Assessor of Town of Eastchester, 294 .A,D.2d 509 (2d Dept 2002), quoting Pqce~ 252 A.D .2d at 90. An· analysis ofthe applicable statutes and case law-includi ng Fair Assessment-...reveals that nothing in the law limits a petitipner' s proof of the appropriate percentage of value solely to the· RAR promulgated by ORPTS. Because effectively that is what the hecITing officer did here, petitioners are entitled to new hearing.s; The applicable.statute concerning SCARhearin g procedures is RPTL §732 Which provides in relevant part: The petitioner shall not be bound by statutory provisions or roles of practice~ procedure, pleading or evidence. . .. The hearing officer shall consider the best evidence presented in each particular case. Such evidence may include, but shall not be limited to, the most recent equalization rate established for such assessing unit, the residential· assessment ratio promulgated by the cornmissfoner pursuant to section seven hundred thhtyeight of this title, the uniform percentage of value stated on the latest tax bill, and the assessment of comparable residential properties within the same assessing unit. RPTL §732(2) (emphasis added); As stated by the court in Pace, .a SCAR claimant may adduce proof of the appropriate percentage of value in various forms, including the applicable equalization rate, the RAR, the assessor's statement of percentage or the assessments of comparable residential properties. Pace, 252 A.D.2d·at 90. And as held in Meoldv. Assessor ofTownofCo lonie, 207 A.D.2d593, 594 (3d Dept. 1994), a SCARS hearing officer is not compelled to accept the RAR as the appropriate percentage of value.. The issue before this court has aJso been addressed at least twice before by trial courts, both of which concluded that a SCARS hearing officer to impeach an RAR. See Macias V; can consider evidence offered Levinson, 2/28/07 Decisionof Hon. F. Dana Winslow, Nassau Co. tndex No. 017744/06; Agosh v; Cicero Bd. ofAssessment RevieW; 150 Misc.2d - - - - - - - - - - - - ~ - - - - - - - - ~ - - - u - £3 ·of · 55 [* 3] FILED: NASSAU COUNTY CLERK 10/05/2022 10:23 AM INDEX NO. NO. 610725/2020 INDEX 610725/2020 RECEIVED NYSCEF: NYSCEF: 09/29/2022 NYSCEF DOC. DOC. NO. NO. 52 756 (Sup.Ct. Onondaga Co; 1991). Se.e also Katz v. Assessor of Vi/late o/Soutliampton, 131 Misc.2d·552 (Sup.Ct. SuffolkCo. 1986)(allowingTowrito introduce evidence apa1tfrqm RAR of proper ratio of .assessed value to fair value); Lee .and LeForestier; Review and Reduction a/Real Property Asse,ssments iri New York; .§9.05 at.447-48 (1988); New York State: Dept. of Taxation and Finance booklet ''Contesting· Your Assessment ·in New York State," Publication 1114 (02/20l2)("To .establish the level of assessment ( at a S.CARS hearing) ... you-may wish to generate your owii estimate of your community's level of assessment .....1')__. The question before this court is whether Fair Assessment effectively changed the iaw and limited the proof otherwise-·madeavailable to-_ a SCARS petitioner by RPTL §732{2.). The coqrt in Fair Assessment held that a taxpayer has· no standing to bring. an Article 78 proceeding to generally chailenge the determination of an RAR by ORPT:S. That _decision: was based on astatutoryinterpretation of'RPTL §1218, which provides that fill.Article 78 proceeding; to c_h~lenge: t). state equalization rate may be;:. b~ought :by ;i_ county, city·,. town or village forwhich therate(s) were established. The court.reasoned thatbecausetaxpayers_ .haveno·-standinglo cballe:nge_an equalization rate (~ey ~enot-a county, ·city, town or .village for which the rate was established), taxpayers· have no Article 78 _()tanding,to ·challenge a class ratio or subset ofthe equalization rate. Fair .A.$sessment~ at J 144. RPTL §1.218 has no beating on SCAR ptoceedi_ilgs or th¢. evidence that may he introduced in such proceedings. And .since a taxpayer cannot directly challenge an RAR in an Article 78 proceeding, it cannot be_presumed or cortcludedthat the:: legislature also intended to definitively foreclose any opportunity for a taxpayer to establish that his or her . ·. . assessment is unequal precisely because the RAR ·utilized. is incorrect. This conclusion is buttressed by the S:econd Department's decision .in Leone v. Board ofAssessors, 100 A.D3d 63"$. (2d D~pt; 2012), in which the..court directed the trial court to consider on· its medt$' petitioners; challengeto a hearing officer's determination that they could not challenge an RAR and _ip.troduce. evidence as to the prop.et ratio-. Finally, the._he_W'.~ng officer':s_alternativerationale·for his deci$ion reJ.ecting petitioners' evidence was that even if-they had standing it would be··wifair to other taxpayers· ------------ ---------'l!- -n-1--".--- -----------··--····-···-· ······--·····- · . 4 of 5 [* 4] INDEX INDEX NO. NO. 610725/2020 610725/2020 FILED: NASSAU COUNTY CLERK 10/05/2022 10:23 AM NYSCEF DOC. DOC. NO. NO. 52 RECEIVED NYSCEF: NYSCEF: 09/29/2022 09/29/2022 if the hearing officer vlere to use any assessment ratio other than the RAR. Of course, this rationaknecessarily results in the automatic rejection of petitioners' assessment ratio evidence, to the same impennissible effect For aH of the reasons set forth above~ the petition is gl'anted upon reargument and these matters are remanded to a hearing officer for nev,r he,irings. 1 Any relief requested not specifically addressed herein is denied, 'This constitutes the Decision and Order of the court. :~ Dated: September 29, 2022 l\.'fineola, Ne\v York ENTERED Oct 05 2022 NASSAU COUNTY COUNTY CLERK'S OFFICE 1This court has not analyzed and does not opine upon the .:subm.issio11s made by petitioners in their SCAR hearings conceming the appropriate ratio to be used. That is for the. hearing officer(s) to detennine in the first ill stance, [* 5] 5 of 5

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