Jonathan E. Neuman, Fresh Meadows, NY (Jonathan D. Gotlieb of
counsel), for appellants.
Carnell T. Foskey, County Attorney, Mineola, NY (Martin E.
Valk of counsel), for respondents.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review (1) a
determination of a Hearing Officer dated June 27, 2014,
denying the small claims assessment review application of the
petitioner David Klein pursuant to Real Property Tax Law
article 7, and (2) a determination of the same Hearing
Officer, also dated June 27, 2014, granting the small claims
assessment review application of the petitioner Shlomo
Nahmias pursuant to Real Property Tax Law article 7 only to
the extent of awarding a limited reduction of the tax
assessment on that petitioner's real property, the
petitioners appeal from an order and judgment (one paper) of
the Supreme Court, Nassau County (Marber, J.), dated March
27, 2015, which granted the respondents' motion pursuant
to CPLR 3211(a) and 7804(f), in effect, to deny the joint
petition and dismiss the proceeding, and denied the joint
petition and dismissed the proceeding.
that the order and judgment is affirmed, with costs.
petitioners, David Klein and Shlomo Nahmias, each own a
residential property in Nassau County. The petitioners filed
grievances to reduce their respective property tax
assessments for the tax year 2014/2015. When their grievances
were denied, the petitioners each filed an application for
small claims assessment review (hereinafter SCAR).
petitioners' SCAR proceedings were held before a Hearing
Officer. In support of their respective SCAR applications,
the petitioners each submitted appraisal reports to establish
the value of their respective properties through the analysis
of comparable sales. In opposition to the SCAR applications,
the Assessment Review Commission of the County of Nassau
(hereinafter the County) submitted its own comparable sales
Hearing Officer denied Klein's SCAR application,
determining that the assessed value of Klein's property
was not excessive. The Hearing Officer granted Nahmias'
SCAR application to the extent of awarding a limited
reduction of the assessed value of Nahmias' property.
petitioners sought review of the Hearing Officer's
determinations by commencing this CPLR article 78 proceeding
with the filing of a joint petition. The respondents made a
pre-answer motion pursuant to CPLR 3211(a) and 7804(f), in
effect, to deny the joint petition and dismiss the
proceeding. In the order and judgment appealed from, the
Supreme Court granted the respondents' motion, denied the
joint petition, and dismissed the proceeding. We affirm.
Real Property Tax Law provides that hearings held pursuant to
the Small Claims Assessment Review procedure are to be
conducted on an informal basis, and the hearing officer is
vested with the discretion to consider a wide variety of
sources and information, including comparable recent sales,
in evaluating tax assessments" (Matter of Meirowitz
v Board of Assessors, 53 A.D.3d 549, 550; see Matter
of Sass v Town of Brookhaven, 73 A.D.3d 785, 787-788;
Matter of Lauer v Board of Assessors, 51 A.D.3d 926,
927; Matter of Barbera v Assessor of Town of Pelham,
278 A.D.2d 412, 413). "The hearing officer shall
consider the best evidence presented in each particular
case" (RPTL 732), and the hearing officer is required
to "determine all questions of fact and law de
novo" (RPTL 732). "The decision of the hearing
officer shall state the findings of fact and the evidence
upon which it is based" (RPTL 733).
a homeowner opts to commence a SCAR proceeding, that property
owner waives his or her right to commence a tax review
proceeding in Supreme Court under RPTL article 7, title 1,
and court review of a JHO's determination is limited to
commencement of a proceeding pursuant to CPLR article
78" (Matter of Yee v Town of Orangetown, 76
A.D.3d 104, 109 [citation omitted]; see RPTL 736,
). Accordingly, "[w]hen a hearing officer's
determination is contested, the court's role is limited
to ascertaining whether that determination has a rational
basis, that is, whether it is not affected by an error of law
or not arbitrary and capricious" (Matter of Sass v
Town of Brookhaven, 73 A.D.3d at 788 [citations
omitted]; see Matter of Yee v Town of Orangetown, 76
A.D.3d at 109; Matter of Meirowitz v Board of
Assessors, 53 A.D.3d at 550; Matter of Lauer v Board
of Assessors, 51 A.D.3d at 927; see generally Matter
of Pell v Board of Educ. of Union Free School Dist. No. 1 of
Towns of Scarsdale & Mamaroneck, Westchester County,
34 N.Y.2d 222, 230-231).
the County's evidence of recent comparable sales provided
a rational basis for the Hearing Officer's determination
that a reduction in the assessed value of Klein's
property was not warranted (see Matter of Lauer v Board
of Assessors, 51 A.D.3d at 927; Matter of Gershon v
Nassau County Assessment Review Commn., 29 A.D.3d 909,
909; Matter of Barbera v Assessor of Town of Pelham,
278 A.D.2d at 413; Matter of McNamara v Board of
Assessors of Town of Smithtown, 272 A.D.2d 617, 617).
The County's evidence of recent comparable sales
submitted in opposition to Nahmias' SCAR application
similarly provided a rational basis for the Hearing
Officer's determination that only a limited reduction of
the tax assessment on Nahmias' property was warranted
(see Matter of Meirowitz v Board of Assessors, 53
A.D.3d at 550; see also Matter of Kishor Patel-Fredonia
Motel v Town of Pomfret, 252 A.D.2d 943).
to the petitioners' contention, the Hearing Officer's
determinations were not arbitrary and capricious on the
ground that the Hearing Officer determined that the assessed
values of the respective properties were not within the range
of values advocated by the parties. There is no indication in
the record that the County conceded that the values of the
subject properties were less than the values determined
pursuant to the original assessment. Contrary to the
petitioners' further contention, the Hearing Officer
adequately stated the findings of fact and the evidence upon
which her determinations were based (see RPTL
733; cf. Matter of Sass v Town of Brookhaven, 73
A.D.3d at 787-788). ...