Blank v. Becker

50 A.D.2d 418, 377 N.Y.S.2d 792, 1976 N.Y. App. Div. LEXIS 10640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1976
• Status: Published

Opinions

Sweeney, J.

The 25 petitioners united in the present petition are owners of 27 separate parcels in the Town of Guilderland claimed to be overvalued and unequally assessed for the year 1974. All 27 parcels are residential lots; 24 are improved by single-family residences, one is improved by a two-family residence, and two are unimproved. Twenty-one of the parcels are within a radius of 2,400 feet of the same intersection; the other six are scattered throughout the town. Petitioners allege that their assessments are unequal in that they were made at a higher proportionate valuation than assessments of other properties on the same roll. They are all represented by the same counsel and have retained the same appraiser. They further allege that the properties do not differ vastly in types or uses and the same methods of valuation will be used by all parties.

Special Term has denied appellant’s motion to sever the proceeding into 27 separate proceedings pursuant to CPLR 603 and this appeal ensued. In view of the more liberalized changes affecting the joinder of parties, we conclude that under the circumstances herein presented, there was no abuse of discretion in denying the motion.

Section 706 of the Real Property Tax Law provides that "[t]wo or more persons having real property assessed upon the same roll who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition.” The words "affected in the same manner” have been construed as meaning "similarly affected”. (Matter of Allen v Rizzardi, 5 NY2d 493; NY Legis Doc, 1943, No. 69.) In the instant proceeding all of the petitioners allege that the assessments of their respective properties are erroneous by reason of overvaluation and inequality. Petitioners are clearly affected in the same manner by such alleged inequality. A common issue of fact is presented in each case. Where petitioners may properly consolidate their proceedings pursuant to section 706, the court should not prevent what the law otherwise permits by mandating a severance. Matter of Allen v Rizzardi, supra, p 499.)

CPLR 603 provides that "[i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims”. Severance of the present proceeding would result in substantial prejudice to the rights of petitioners to review their individual tax assessments. It would not further the convenience of the court or the litigants. Moreover, we find no prejudice to appellant assessor if the claims are not severed. (See 860 Executive Towers v Board of Assessors of County of Nassau, 75 Misc 2d 381, affd 43 AD2d 910; cf. Matter of River Troy Realties v Commissioner of Assessment & Taxation of City of Troy, 17 AD2d 999.)

The order should be affirmed, without costs.