IN THE MATTER OF BOARD OF MANAGERS, UNIQUEST DELAWARE, LLC, RESIDENTIAL CONDOMINIUM, ALSO KNOWN AS THE AVANT, PETITIONER-APPELLANT,
ASSESSOR, CITY OF BUFFALO, AND BOARD OF ASSESSMENT REVIEW OF CITY OF BUFFALO, COUNTY OF ERIE, STATE OF NEW YORK, RESPONDENTS-RESPONDENTS, AND COUNTY OF ERIE, INTERVENOR-RESPONDENT.
WOLFGANG & WEINMANN, LLP, BUFFALO (PETER ALLEN WEINMANN
OF COUNSEL), FOR PETITIONER-APPELLANT.
BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (MAURA
C. SEIBOLD OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (MARGARET A. HURLEY OF
COUNSEL), FOR INTERVENOR-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND WINSLOW, JJ.
from an order of the Supreme Court, Erie County (Timothy J.
Walker, A.J.), entered January 29, 2016 in a proceeding
pursuant to RPTL article 7. The order denied the motion of
petitioner for summary judgment on its petitions.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Petitioner operates a residential condominium in the City of
Buffalo. Acting on behalf of its constituent unit owners,
petitioner commenced the instant tax certiorari proceedings
pursuant to RPTL article 7 to challenge multiple
reassessments of the condominium. Petitioner subsequently
moved for summary judgment on its petitions, contending that
respondents violated RPTL 581 and Real Property Law §
339-y by reassessing the condominium based on the sale prices
of individual units. Petitioner further contended that the
challenged reassessments were unconstitutionally selective.
In opposition, respondents contended that the reassessments
did not violate RPTL 581 or Real Property Law § 339-y
because they were based on physical improvements to various
units, not on the sale prices of such units. Respondents also
denied conducting impermissibly selective reassessments, and
they submitted an affidavit from a municipal assessor who
averred that it was "standard practice" in the City
of Buffalo to reassess property upon physical improvements
thereto. Supreme Court denied petitioner's motion, and we
reject petitioner's contention that it is entitled to
judgment as a matter of law on the basis of the claimed
statutory violations. RPTL 581 has been "construed to
mean that condominiums... [should] be assessed as if they
were conventional apartment houses whose occupants were rent
paying tenants' " (Matter of Greentree At
Lynbrook Condominium No. 1 v Board of Assessors of Vil. of
Lynbrook, 81 N.Y.2d 1036, 1039 , quoting
Matter of South Bay Dev. Corp. v Board of Assessors of
County of Nassau, 108 A.D.2d 493, 500 [2d Dept 1985]).
Real Property Law § 339-y has been similarly interpreted
(see Matter of D. S. Alamo Assoc. v Commissioner of Fin.
of City of N.Y., 71 N.Y.2d 340, 345, 347 ;
Matter of Board of Mgrs. of Harbor Condominiums v Board
of Assessors of Vil. of Lake Placid, 238 A.D.2d 825, 826
[3d Dept 1997], lv denied 91 N.Y.2d 802');">91 N.Y.2d 802 ;
South Bay Dev. Corp., 108 A.D.2d at 496-497,
507-508). Thus, as petitioner correctly contends, municipal
tax assessors may not ordinarily rely on market-sales data
for individual units to valuate condominiums (see South
Bay Dev. Corp., 108 A.D.2d at 495-508; cf. Matter of
East Med. Ctr., L.P. v Assessor of Town of Manlius, 16
A.D.3d 1119, 1120 [4th Dept 2005]).
"when a taxpayer in a tax certiorari proceeding seeks
summary judgment, it is necessary that the movant establish
his [or her] cause of action... sufficiently to warrant the
court as a matter of law in directing judgment in his [or
her] favor" (Matter of Crouse Health Sys., Inc. v City
of Syracuse, 126 A.D.3d 1336, 1337 [4th Dept 2015] [internal
quotation marks omitted]), and here, petitioner's moving
papers failed to establish, as a matter of law, that
respondents actually relied on market-sales data for
individual units in contravention of RPTL 581 and Real
Property Law § 339-y (see Board of Mgrs. of Harbor
Condominiums, 238 A.D.2d at 826-827; cf. Matter of
Central Westchester Tenants Corp. v Iagallo, 136 A.D.2d
53, 55 [2d Dept 1988], lv denied 72 N.Y.2d 810');">72 N.Y.2d 810
, appeal dismissed 72 N.Y.2d 954');">72 N.Y.2d 954 ).
Indeed, on this record, it would be sheer speculation to
conclude that respondents relied on market-sales data in
reassessing petitioner's condominium. The fact
"[t]hat the assessed values of some of the condominiums
approximate recent sales prices of those units is not enough,
without more, to warrant an inference that the assessments
were derived solely or substantially from those prices"
(Board of Mgrs. of Harbor Condominiums, 238 A.D.2d
at 826). Petitioner's motion for summary judgment was
therefore properly denied with respect to the alleged
statutory violations (see id.; see generally
Crouse Health Sys., Inc., 126 A.D.3d at 1337-1338).
reject petitioner's contention that it is entitled to
judgment as a matter of law on the ground that the challenged
reassessments are unconstitutionally selective. "It is
well settled that a system of selective reassessment that has
no rational basis in law violates the equal protection
provisions of the Constitutions of the United States and the
State of New York. Nevertheless, reassessment upon
improvement is not illegal in and of itself... so long as
the implicit policy is applied even-handedly to all similarly
situated property " (Matter of Carroll v
Assessor of City of Rye, N.Y., 123 A.D.3d 924, 925 [2d
Dept 2014] [emphasis added and internal quotation marks
omitted]). Here, the assessor's affidavit raises triable
issues of fact as to whether the challenged reassessments
were unconstitutionally "selective, " i.e., not
applied even-handedly to all similarly situated properties.
Summary judgment was thus properly denied with respect to
petitioner's selective reassessment claim (see Matter
of Resnick v Town of Canaan, 38 A.D.3d 949, 953 [3d Dept
remaining contentions are not properly before us because they
were made for the first time either in its reply papers at
Supreme Court (see Jackson v Vatter, 121 A.D.3d
1588, 1589 [4th Dept 2014]), or in its appellate brief in