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Estrellita LLC v. Town Board of Town of Alexandria

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


March 20, 2009

IN THE MATTER OF ESTRELLITA LLC AND ST. LAWRENCE GRANDE, INC., AND ALL OTHERS SIMILARLY SITUATED, PETITIONERS-RESPONDENTS,
v.
TOWN BOARD OF TOWN OF ALEXANDRIA, TOWN OF ALEXANDRIA, TOWN OF ALEXANDRIA BOARD OF ASSESSMENT REVIEW, AND ASSESSOR OF TOWN OF ALEXANDRIA, RESPONDENTS-APPELLANTS.

Appeal, by permission of a Justice of the Supreme Court, Jefferson County (Joseph D. McGuire, J.), from an order entered February 28, 2008 in a proceeding pursuant to CPLR article 78. The order denied the motion of respondents to dismiss the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: MARTOCHE, J.P., CENTRA, CARNI, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to annul the tax assessment of their properties in respondent Town of Alexandria. Respondents appeal from an order denying their motion to dismiss the petition. We reject respondents' contention that a CPLR article 78 proceeding is not an appropriate procedural vehicle for challenging the tax assessments and that RPTL article 7 is the exclusive procedural vehicle for such a challenge. A challenge to an individual property tax assessment on the ground that the assessment was illegal, excessive or unequal should be brought in a certiorari proceeding under RPTL article 7. Here, however, the challenge is to " the method employed in the assessment of several properties rather than the overvaluation or undervaluation of [a] specific propert[y]. . .,' " and thus a proceeding pursuant to CPLR article 78 is not inappropriate (Matter of Cayuga Grandview Beach Coop. Corp. v Town Bd. of Town of Springport, 51 AD3d 1364, 1364, lv denied 11 NY3d 702; Matter of Board of Mgrs. of Greens of N. Hills Condominium v Board of Assessors of County of Nassau, 202 AD2d 417, 419, lv denied 83 NY2d 757; Matter of Averbach v Board of Assessors of Town of Delhi, 176 AD2d 1151, 1152). Also contrary to respondent's contention, the petition does not fail to state a cause of action. Indeed, the petition sufficiently states "a cause of action against respondents for purportedly utilizing an unconstitutional reassessment methodology" (Averbach, 176 AD2d at 1153).

20090320

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