Cecere v. City of Batavia

41 A.D.2d 698

Opinion

Judgment - unanimously, . reversed, with costs, plaintiff’s motion' ■ granted: and defendant’s-cross'motion denied. Memorandum: In her amended • complaint' plaintiff.' seeks to remove certain special assessments as a cloud upon title to her property.' .-. She alleges that the assessments were entirely. . void 'and were levied, without jurisdiction because no benefit was conferred •upon- her property. Defendant in its answér denies the material allegations of the complaint and sets forth affirmative defenses alleging that the plaintiff’s cause of action is barred by the Statute of Limitations contained in article 7 of the Real-Property.Tax Law, and article 78 of the CPLR. ■ The sections of 'of- the .Bátávia .City: Charter dealing with special assessments make no provision for any remedy, at daw for challenging -such improvement' assessments. /■There ■ being no reference in- the. Charter to..the availability of an. exclusive remedy, the plaintiff. i's. entitled-to. proceed by way'of an equity proceeding to: ■quiet'title,, to her . property (see Lewis v. City of Lockport, 276 N. Y. 336; Elmhurst Fire Co., v. City of New York, 213 N. Y. 87; Cooper Union v. City of New York, 272 App. Div. 438, affd. 298 N. Y. 578; Buffalo Hebrew Christian Mission v. City of Syracuse, 33 A D 2d. 152), (Appeal from judgment of Erie Special Term dismissing complaint in action:to invalidate assessments.). Present — '.Goldman, P.'J; Marsh, .Cardamone, Simons and Henry, JJ.