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In re Town of Stony Point

Supreme Court of New York, Third Department

June 13, 2013

In the Matter of TOWN OF STONY POINT et al., Appellants,
v.
STATE OF NEW YORK DEPARTMENT OF FINANCE, OFFICE OF REAL PROPERTY SERVICES, et al., Respondents.

Calendar Date: April 23, 2013

Feerick, Lynch & MacCartney, PLLC, South Nyack (Mary E. Marzolla of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondents.

Before: Peters, P.J., Rose, McCarthy and Egan Jr., JJ.

MEMORANDUM AND ORDER

Peters, P.J.

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered April 25, 2012 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motion to dismiss the petition.

The North Rockland Central School District in Rockland County contains all of the Town of Stony Point and a portion of the Town of Haverstraw. For school districts that encompass part or all of several municipalities, "the district superintendent must determine the full valuation of the real property of each part of a city or town included in the school district by dividing the taxable assessed valuation of the real property in that part of the city or town by the State equalization rate established for the entire city or town" (Matter of City of Oswego v New York State Bd. of Real Prop. Servs., 280 A.D.2d 99, 100 [2001], lv denied 96 N.Y.2d 711 [2001]; see RPTL 1314 [1] [a]). Respondent Commissioner of Taxation and Finance, however, is authorized to allow the use of a special equalization rate if "a portion of a city or town is contained within a school district and the ratio of assessed value to full value of the properties contained in that portion is for some reason at variance with the State equalization rate for the entire municipality" (Matter of City of Oswego v New York State Bd. of Real Property Servs., 280 A.D.2d at 102; see RPTL 1314 [2]).

Petitioner Town of Stony Point applied to the Commissioner for the establishment of a special equalization rate for the portion of the Town of Haverstraw lying within the district. A subsequent analysis by respondent Office of Real Property Tax Services recommended that the Commissioner deny the application, citing the lack of "a 10 percent change in the share of the levy of at least one segment of the taxing jurisdiction as the result of the use of the segment special equalization rate" instead of the State equalization rate (9 NYCRR former 186-5.5 [a]) [1]. The Commissioner agreed, prompting petitioners to commence this combined CPLR article 78 proceeding and declaratory judgment action. Respondents moved to dismiss and argued, among other things, that certain portions of the proceeding were time-barred and that Supreme Court lacked subject matter jurisdiction to consider the remainder. Supreme Court granted the motion, and petitioners appeal.

We affirm. Petitioners' constitutional and statutory challenges to the validity of 9 NYCRR former 186-5.5 are attacks upon "a quasi-legislative act or decision made by an administrative agency" that are properly advanced in a CPLR article 78 proceeding (Matter of Capital Dist. Regional Off-Track Betting Corp. v New York State Racing & Wagering Bd., 97 A.D.3d 1044, 1045 [2012]; see Walton v New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 194 [2007]; Via Health Home Care, Inc. v New York State Dept. of Health, 33 A.D.3d 1100, 1101 [2006]). They are accordingly subject to a four-month statute of limitations and, inasmuch as the regulation was last amended seven years prior to the commencement of this proceeding, Supreme Court properly dismissed them as time-barred (see CPLR 217 [1]; Via Health Home Care, Inc. v New York State Dept. of Health, 33 A.D.3d at 1101-1102).

We also agree with Supreme Court's conclusion that it lacked subject matter jurisdiction to consider petitioners' contentions regarding the rejection of their application for the establishment of a special equalization rate. A CPLR article 78 proceeding challenging that determination must "be instituted in the Appellate Division, and if commenced in the wrong court, it is properly dismissed" (Matter of Feiner v New York State Off. of Real Prop. Servs., 25 A.D.3d 1005, 1006 [2006], lv denied 6 N.Y.3d 712 [2006]; see RPTL 1218; Matter of Town of Riverhead v New York State Bd. of Real Prop. Servs., 5 N.Y.3d 36, 42 [2005]). Petitioners' remaining arguments, to the extent that they have not been rendered academic in light of the foregoing, have been examined and rejected.

Rose, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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