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Yee v. Town of Orangetown

June 8, 2010

IN THE MATTER OF AMY YEE, APPELLANT,
v.
TOWN OF ORANGETOWN, RESPONDENT.
IN THE MATTER OF KENNETH KOLWICZ, APPELLANT,
v.
TOWN OF CLARKSTOWN, RESPONDENT.
IN THE MATTER OF ESTHER BRAUN, APPELLANT,
v.
TOWN OF RAMAPO, RESPONDENT.



APPEAL by the petitioners, in a proceeding pursuant to CPLR article 78 to review a determination of a Judicial Hearing Officer (Luke M. Charde, Jr., J.H.O.) dated November 5, 2008, dismissing, with prejudice, their Small Claims Assessment Review petitions for failure to permit the respondents to conduct inspections of their respective properties, from a judgment of the Supreme Court (William K. Nelson, J.), dated February 24, 2009, and entered in Rockland County, which denied the CPLR article 78 petition and dismissed the proceeding.

The opinion of the court was delivered by: Sgroi, J.

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.

JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN SANDRA L. SGROI, JJ.

(Index No. 12730/08)

OPINION & ORDER

The petitioners, Amy Yee, Kenneth Kolwicz, and Esther Braun, challenge the dismissal of their Small Claim Assessment Review (hereinafter SCAR) petitions by the Judicial Hearing Officer (hereinafter the JHO) designated to hear such cases because of their failure to permit inspections of their respective properties by the town assessor. They contend that discovery preliminary to a SCAR decision is limited to a viewing or inspection by the JHO, and that the JHO violated their rights under the Fourth Amendment to the United States Constitution in determining that they were required to permit an inspection of their homes by a representative of the respondents Town of Orangetown, Town of Clarkstown, and Town of Ramapo in Rockland County (hereinafter collectively the towns) before the JHO could consider the merits of their challenges to their tax assessments. We conclude that the JHO's determination was in error.

History of the Proceedings

The three petitioners own residential real property in the towns and filed grievances to reduce the 2008 tax assessments of their property. After those grievances were denied in 2008, the petitioners appealed to their respective town boards of assessment review. After a denial of those appeals, the petitioners commenced SCAR proceedings to review the denial of their appeals by the towns.

At the pretrial conferences of the SCAR proceedings held before the JHO, the towns requested that their representatives be permitted to inspect the homes of the petitioners. The petitioners refused to permit the inspections. The towns made an oral application for dismissal of the SCAR petitions, asserting that they had the right to inspect the petitioners' homes. The JHO dismissed the SCAR petitions, with prejudice, holding that, when a homeowner files a SCAR petition, that homeowner makes a limited and revocable waiver of a right to privacy and consents to inspection and, upon a demand for an inspection by the town, must comply to avoid dismissal of the proceeding.

After the JHO dismissed the SCAR petitions, the petitioners commenced this proceeding pursuant to CPLR article 78 in Supreme Court to review the JHO's determination, arguing that no disclosure other than the inspection of the property by the JHO is permitted in SCAR proceedings, and that the inspections mandated by the JHO violated their Fourth Amendment rights under the United States Constitution.

The Ruling in Supreme Court

In a judgment dated February 24, 2009, the Supreme Court denied the CPLR article 78 petition and dismissed the proceeding, stating that "permitting the municipality to do an inspection enhances the accuracy of an appraisal by revealing remodeling and other improvements that, for one reason or another, might not be reflected in municipal records" and that "it also puts the municipality on an equal footing with the petitioner." The Supreme Court determined that it was within the JHO's discretion to direct inspections and within his power to dismiss the SCAR proceedings based on the petitioner's failure to comply with the request for inspections. The Supreme Court reasoned that RPTL 732(2) authorizes an inspection by the JHO and, thus, an inspection by the towns was not antithetical to a SCAR proceeding. Allowing an ...


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