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In re Aymes

Supreme Court, New York

March 28, 2013

In the Matter of CLIFFORD AYMES, Petitioner,

Unpublished Opinion



In this tax certiorari proceeding, respondents Tax Commission of the City of New York (Tax Commission), NYC Department of Finance (DOF) and City of New York (City) move, pursuant to CPLR 3211 (a) (1), (2), (4), (5) and (7), to dismiss the amended petition. Petitioner pro se Clifford Aymes cross-moves for leave to amend the petition.

Petitioner owns real property in New York County known as and located at 334-336 St. Nicholas Avenue and 316-318 West 127th Street, designated on the tax maps of the City of New York as county, block and lot number 1-1953-42 (the Property). In 2010, petitioner filed a petition in this court under N.Y. County index number 200026/10 challenging the Property's classification as Class 4 vacant property. On April 27, 2011, this court granted respondents' motion to dismiss the petition based on petitioner's failure to comply with statutory prerequisites. Motion, Exhibit 3. The Appellate Division, First Department ultimately affirmed this court's decision on May 10, 2012. Matter of Aymes v Tax Commn. of City of New York, 95 A.D.3d 567. In dicta, the First Department noted that "dismissal of this proceeding for failure to exhaust administrative remedies does not, in and of itself, bar petitioner from seeking corrections relating to the subject property's square footage, income, and expenses, which he properly sought in a Request for Review filed with the Department of Finance." Id. at 567-568.[1]

After receiving notice on or about January 15, 2011 that the Property had been assigned a market value of $70, 000 and an assessed value of $31, 500, petitioner first made a request for review and then an application for correction to respondents. On or about April 28, 2011 respondents issued a notice of revised property value lowering the market value of the Property to $62, 000 and the assessed value to $27, 900. On or about May 18, 2011, petitioner commenced the instant proceeding by filing a petition alleging that the $62, 000 market value was excessive, unequal, erroneous and discriminatory (Original Petition). Motion, Exhibit 1.

On or about August 6, 2012, petitioner served an amended petition seeking to add to the Original Petition relief for the 2012/2013 tax year and, based upon the First Department's dicta noted above, a claim regarding the square footage, income and expenses for tax year 2010/11 (Amended Petition). Id., Exhibit 2. Respondents now move to dismiss this Amended Petition. Petitioner's cross-motion seeks in relevant part leave to file a different amended petition dated January 10, 2013, as attached to the cross-moving papers (Proposed Amended Petition).

Petitioner has also commenced a separate Real Property Tax Law (RPTL) Article 7 proceeding under New York County index number 200227/12 for the 2012/13 tax year (New Petition). Id., Exhibit 5. No request for judicial intervention has been filed in that proceeding. To summarize, the Original Petition addresses the tax year 2011/2012; the Amended Petition and the Proposed Amended Petition address tax years 2010/11, 2011/2012 and 2012/2013; and the New Petition addresses tax year 2012/2013.

Respondents' motion to dismiss the Amended Petition is granted. CPLR 3025 (a) provides that a "party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it." Here, the Amended Petition is a nullity because Petitioner's time to amend as of right had expired at the time he served it[2] and he did not obtain leave of court prior to serving it. See CPLR 3025 (b). Respondents argue, and this court agrees, that the time for petitioner to amend the Original Petition without leave of court has long elapsed.

Turning to Petitioner's cross-motion for leave to interpose the Proposed Amended Petition, leave to amend pleadings "shall be freely given upon such terms as may be just. . ." CPLR 3025 (b). While the decision to allow or disallow an amendment is left to the court's sound discretion (see Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959 [1983]), a court need not grant leave to amend a pleading where the proposed amendment is palpably without merit (see Probst v Cacoulidis, 295 A.D.2d 331, 332 [2d Dept 2002]).

Here, the Proposed Amended Petition is palpably without merit. The Proposed Amended Petition asserts that the Appellate Division's decision allowed petitioner to challenge the square footage, income and expense for the Property, and it asks to revise the Property's square footage. It also alleges fraud in the manner in which square footage was assessed. Claims pertaining to tax year 2010/11 were fully litigated and dismissed in the 2010 proceeding, and any new claims or theories arising from that tax year are barred by res judicata and cannot be considered in this proceeding. See O'Brien v City of Syracuse, 54 N.Y.2d 353, 357 (1981) (principles of res judicata require that "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy"); Bikman v 595 Broadway Assocs., 88 A.D.3d 455, 455 (1st Dept 2011) (where claims have been fully litigated in prior proceedings the doctrine of res judicata bars them from being relitigated). The Appellate Division's dicta merely notes that petitioner might still seek administrative remedies, but it did not open the door for a petition, new, renewed or amended, absent such steps.

With respect to the claims pertaining to tax year 2012/13, this court finds no supporting authority for the proposition that petitioner may commence an Article 7 proceeding by amending a previously filed petition for another tax year. Respondent DOF makes annual determinations of the value of real property in New York City. Article 7 of the RPTL provides the exclusive remedy for a review of real property tax assessments. New York City Charter (NYC Charter) § 163 (f) requires an application of correction to be filed with the Tax Commission to review the assessment between January 15th and March 1st of each year, and NYC Charter § 166 requires the commencement of a proceeding to review the Tax Commission's determination before October 25th of the year in which the determination is made. Failure to serve and file the petition "within such [specified] time shall constitute a complete defense to the petition and the petition must be dismissed." RPTL § 702 (3).

The statutory scheme clearly contemplates the filing of a separate petition for each tax year. Accordingly, amendment of the 2011 petition to add a challenge to a tax year other than the 2011/12 tax year would be improper. The New Petition is the appropriate vehicle for petitioner to challenge the 2012/13 assessment. This court has considered the parties' remaining arguments and finds them unavailing.

Accordingly, for the foregoing reasons it is

ORDERED that respondents Tax Commission of the City of New York, NYC Department of Finance, and City of New York's motion to dismiss the Amended ...

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