Agosh v. Town of Cicero Board of Assessment Review

150 Misc. 2d 756, 570 N.Y.S.2d 876, 1991 N.Y. Misc. LEXIS 269
CourtNew York Supreme Court
DecidedApril 4, 1991
StatusPublished
Cited by3 cases

This text of 150 Misc. 2d 756 (Agosh v. Town of Cicero Board of Assessment Review) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agosh v. Town of Cicero Board of Assessment Review, 150 Misc. 2d 756, 570 N.Y.S.2d 876, 1991 N.Y. Misc. LEXIS 269 (N.Y. Super. Ct. 1991).

Opinion

OPINION OF THE COURT

William R. Roy, J.

These three CPLR article 78 proceedings — each by multiple [758]*758petitioners homeowners — have been brought to review decisions by Hearing Officers in small claims assessment review proceedings brought pursuant to title 1-A of article 7 of the Real Property Tax Law to raise claims of inequality in the assessments of petitioners’ residential properties.

In each of the three article 78 proceedings respondent Board of Assessment moved to dismiss on a variety of grounds, but principally on the ground of improper joinder of petitioners; the motions to dismiss were denied following oral argument, because the court is satisfied that the requirements of CPLR 1002 (a) for permissive joinder (claims arising out of the same series of transactions presenting a common question of law or fact) have been met. Given the broad liberality accorded joinder statutes (Tanbro Fabrics Corp. v Beaunit Mills, 4 AD2d 519, 524), the individual small claims assessment reviews secured by petitioners constituted the necessary series of transactions, and the primary question posed — i.e., whether the Hearing Officers could take into consideration evidence offered by the Board of Assessment to impeach the residential assessment ratio offered by petitioners — fulfilled the requirement of a common question of law or fact (Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569; Betzler v Carey, 109 Misc 2d 881, affd 91 AD2d 1116, lv denied 59 NY2d 601).

No advantage would accrue to either the petitioners or the respondent — and certainly none to the judicial system — by requiring that a separate article 78 proceeding be instituted with respect to each parcel assessed (which total more than 50 parcels in Adams alone), other than the discouragement of owners of individual parcels from seeking the judicial review expressly made available to them by Real Property Tax Law § 736 (2).

The remaining grounds on which dismissal was sought (other than those addressing the merits of the article 78 proceedings) were also rejected by the court at oral argument. The claim that petitioners have waived their right to seek a determination of a different assessment ratio by not bringing a tax certiorari proceeding under article 7 of the Real Property Tax Law is predicated on an erroneous assumption with respect to the object of petitioners’ small claims assessment review proceedings; what was sought by them was a change in their individual assessments on the ground of inequality— which is relief that title 1-A proceedings are expressly designed to provide — in these cases, by application of the residential assessment ratio promulgated by the State Board of [759]*759Equalization and Assessment, not by a change of that ratio. Finally, the inclusion in petitioners’ papers of a decision by another small claims assessment Hearing Officer would in no event be a basis for dismissal of these article 78 proceedings.

Turning then to the merits of these proceedings: It must be noted at the outset that the process provided by the small claims assessment review title is unique, and is intended to make possible a residential homeowner’s prompt procurement of correction of an unequal or excessive assessment by a qualified Hearing Officer, experienced in real property assessment and valuation, in the context of an informal hearing. Among the items that may be considered is a "Residential Assessment Ratio” (RAR), a figure calculated by the State Board of Equalization and Assessment (SBEA) in accordance with Real Property Tax Law § 738 specifically for use in title 1-A proceedings. The hearings are to be conducted "on an informal basis in such manner as to do substantial justice between the parties” (RPTL 732 [2]), and the homeowner need not present expert witnesses, be represented by an attorney or be bound by rules of practice, procedure, pleading or evidence. The Hearing Officer is required to consider the best evidence presented in each particular case, and the statute expressly provides that such evidence "may include, but shall not be limited to, the most recent equalization rate established for such assessing unit, the residential assessment ratio promulgated by the state board * * * and the assessment of comparable residential properties within the same assessing unit” (Real Property Tax Law § 732 [2]; emphasis supplied). A written decision is required to be issued by the Hearing Officer which "shall state the findings of fact and the evidence upon which it is based” (Real Property Tax Law § 733 [4]).

There is no requirement that any transcript of the hearing be prepared, which in some instances may pose a problem when, as here, an article 78 proceeding is brought by a homeowner to challenge the action or the determination of a Hearing Officer and a knowledge of events occurring, or of the evidence submitted, at the hearing is critical.

In the present cases, however, there is no dispute that the Board of Assessment put before each of the Hearing Officers documents to impeach and demonstrate inaccuracy of the RAR of 6.64% which had been promulgated by SBEA and had been introduced by petitioners as the major component of their proof to show inequality of their assessments. The assessments, when aligned with petitioners’ evidence of the valúa[760]*760tians of their properties — evidence not controverted by the Assessment Board which, however, did not concede the valuations — reflected a ratio in every instance higher than the RAR of the taxing unit.

By responding papers, petitioners raised objection to the Board’s submissions, arguing, as they do in these CPLR article 78 proceedings, that an attack on the RAR by the assessing officer lies only through the process set out in Real Property Tax Law § 738 (2), by which the assessor may, within 30 days after issuance of the RAR, present documentation to SBEA showing material error in the ratio in order to have a new ratio computed. It is petitioners’ position that the assessor may not forego the process thus provided and instead mount a collateral attack on the RAR in a small claims assessment review proceeding instituted under title 1-A.

Petitioners’ argument is that, because the equalization rate of 9.3% (put before the Hearing Officers by the Board of Assessment) had been impugned by the Board’s own voluntary reduction of challenged assessments on grievance day to an 8% rate, and because information of assessments of comparable properties was impaired "because serious sampling problems exist”, the RAR issued by SBEA — immune, they assert, from collateral attack by the Board — was the "best evidence” before the Hearing Officers. Consequently, the assessments determined by the Hearing Officers, which (by their computations from what they claim were the values of their properties) reflect ratios greater than the RAR, were arbitrary and capricious.

The linchpin of petitioners’ position is their assertion that the Board of Assessment could not in small claims assessment review proceedings challenge the RAR and by documentary evidence demonstrate that it was inaccurate and not credible, by reason of the fact that a substantial number of the properties used in its computation did not qualify for consideration because they were not improved residential property at the times required by Real Property Tax Law § 738 (3) or because the reports from which data was obtained were erroneous or incomplete.

No such prohibition is to be found, however, in the small claims assessment review statute.

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Bluebook (online)
150 Misc. 2d 756, 570 N.Y.S.2d 876, 1991 N.Y. Misc. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agosh-v-town-of-cicero-board-of-assessment-review-nysupct-1991.