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MATTER BOARD EDUCATION CENTRAL SCHOOL DISTRICT NO. 1 TOWNS ONTARIO v. JAMES B. PARSONS (12/31/69)

SUPREME COURT OF NEW YORK, WAYNE COUNTY 1969.NY.44109 <http://www.versuslaw.com>; 306 N.Y.S.2d 833; 61 Misc. 2d 838 December 31, 1969 IN THE MATTER OF THE BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 1 OF THE TOWNS OF ONTARIO, WALWORTH, WILLIAMSON, MARION AND MACEDON ET AL., PETITIONERS,v.JAMES B. PARSONS, AS ASSESSOR FOR THE TOWN OF ONTARIO, RESPONDENT Robert J. Stanton for petitioners. William D. Scully and James H. Boomer for respondent. Joseph G. Fritsch, J. Author: Fritsch


Joseph G. Fritsch, J.

Author: Fritsch

 The petitioners herein come before this court seeking to review the 1970 assessment on the Robert E. Ginna Nuclear Power Plant located in the Town of Ontario, Wayne County, New York. They seek this review by a petition under title 78 of the CPLR and one under article 7 of the Real Property Tax Law. The petitions in both proceedings are identical.

The respondents herein cross-move for an order pursuant to CPLR 3211 and 3212 dismissing the petitioners' petitions herein and for summary judgment on various grounds as stated in their moving papers and affidavits.

It is the contention of the petitioners that the property owned by the Rochester Gas & Electric Corporation and known as Robert E. Ginna Nuclear Power Plant, situate in the Town of Ontario, Wayne County, New York, is underassessed and, therefore, its assessment is incorrect. The tax assessment involved was levied in the year 1969, the tax status date for the assessment being May 1, 1969. The petitioners in applying for review under article 78 of the CPLR and under article 7 of the Real Property Tax Law seek an increase in this tax assessment on the Rochester Gas & Electric property, claiming that such property was assessed at a lower percentage of true or full value than other properties in the Town of Ontario and other real property on the same assessment roll. They contend and allege that the true or full value of the plant is in excess of $100,000,000 rather than $37,528,800, the true and full value as judged by assessor, James B. Parsons; and they, therefore, ask the court to "review and correct on the merits" the final assessment of James B. Parsons, the assessor for the Town of Ontario, Wayne County, New York, and "to take evidence" to enable the petitioners "to show the unjust, unequal, illegal, erroneous, unconstitutional, arbitrary and capricious assessment of the plant, to the end that the said assessment may be increased to a valuation proportionate to the assessment of other real property assessed on the same rolls for the same year," of 1970.

The respondent has moved on various grounds, as stated in the moving papers, to dismiss this proceeding and for summary judgment.

I will first consider the proceeding brought under article 78 of the CPLR, which proceeding is in the nature of certiorari to review. To decide the question as to whether the relief, which the petitioners seek, is available to them under this proceeding and to decide the respondent's motion, it is necessary, first, to review historically the purpose of article 78 of the CPLR.

The remedies of certiorari to review, mandamus and prohibition, which were three distinct remedies, each designed for a different type of wrong, were part of the law of England and became part of the law of New York. When the former Civil Practice Act was adopted and became effective in 1921, they were continued, but the writ practice was abolished in favor of an order. In 1937 the New York Legislature abolished these writs and combined the remedies under a proceeding against a body or officer in article 78 of the Civil Practice Act. Article 78 of the Civil Practice Act was superseded in 1963 by the present article 78 of the CPLR (23 Carmody-Wait 2d, New York Practice, § 145:1, page 423), CPLR 7801 being in part as follows: "Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article. Wherever in any statute reference is made to a writ or order of certiorari, mandamus or prohibition, such reference shall, so far as applicable, be deemed to refer to the proceeding authorized by this article."

The purpose and effect of the present article 78 of the CPLR, and article 78 of the former Civil Practice Act was to simplify, and unify the procedure in connection with the three old remedies of, certiorari to review, mandamus and prohibition. They were merely remedial on the practice side. The substantive side of the remedies was left unaffected, there being no intention to extend, limit, or abolish the various remedies in substance. (23 Carmody-Wait 2d, § 145:2, pp. 424 and 425; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164.) Thus, the relief formerly obtained by certiorari to review remains unchanged in reference to its function and the conditions under which it is granted. (See Matter of Barber v. Richardson, 175 Misc. 210; Matter of Browne v. Rice, 171 Misc. 695, affd. 259 App. Div. 847.)

Historically, as a matter of substantive law, the right to a certiorari order had to be found either in an express provision of statute or, if it had not been expressly granted or expressly taken away be statute, in the common law. (See 23 Carmody-Wait 2d, p. 429, n. 14 and 23 Carmody-Wait 2d, § 145:5.)

In a proceeding such as the one here where the object is "to review and correct on the merits" an assessment, the common-law writ extended only to the review of the assessments void for want of jurisdiction on the part of the assessors, or to the review of assessments containing some illegality as distinguished from errors of judgment, whether affecting a question of law or of fact. (See Powell and Jacobs, Reducing Realty Taxes [3d ed.], pp. 262-264; also People ex rel. Kendall v. Feitner, 51 App. Div. 196, and People ex rel. Ruppert Realty Corp. v. Cantor, 115 Misc. 519, affd. 204 App. Div. 863.)

In this proceeding we do not have a claim by petitioners that the assessment is void for want of jurisdiction, or that the assessment contains some illegality as distinguished from errors of judgment, but rather the claim is that the assessor, Parsons, erred in his judgment which resulted in an assessment that was unjust, unequal, erroneous, unconstitutional, arbitrary and capricious, and was, therefore, illegal. This proceeding is not based in mandamus, which is a proceeding to compel action and to set in motion, because here the assessor has acted but is claimed to have acted erroneously.

The office of the code writ, which was the same substantially as the common-law writ, was not to revise or modify or set aside assessments on the ground that they were excessive or unequal, but it only extended to assessments void for want of jurisdiction. (See People ex rel. Kendall v. Feitner, supra, and text, Powell and Jacobs, Reducing Realty Taxes, p. 264; see, also, Fifteenth Annual Report of N. Y. Judicial Council, 1949, p. 324 et seq.)

Thus, a taxpayer whose assessment was excessive or unequal had no adequate remedy, and by parity of reasoning the writ could furnish no surer remedy to one whose tax burden has been increased by the omission of taxable property from the roll or as here alleged, the underassessment or property of others. (See Fifteenth Annual Report of N. Y. Judicial Council, 1949, supra, and People ex rel. Hoesterey v. Taylor, 121 Misc. 718, revd. 210 App. Div. 196, revd. 239 N. Y. 626.)

To give the taxpayer a remedy in a situation where it was alleged that the assessment was excessive and unequal, and where the relief sought was to revise and modify or set aside the assessment, the Legislature in 1880 enacted a statute (L. 1880, ch. 269) creating a new and complete system for correcting the errors of assessors (see People ex rel. Wallkill Val. R. R. Co. v. Keator, 101 N. Y. 610). The provisions of the 1880 statute were substantially re-enacted and enlarged in 1896, (L. 1896, ch. 908, § 250 et seq.) and subsequently became former article 13 of the Tax Law. In 1949 this article 13 was completely revised and a simple proceeding was substituted therefor. (See Fifteenth Annual Report of N. Y. Judicial Council, 1949, p. 321 et seq.) In 1959 article 13 of the Tax Law was repealed and superseded ...


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