Samuels v. Town of Clarkson

91 A.D.2d 837, 458 N.Y.S.2d 393, 1982 N.Y. App. Div. LEXIS 19743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1982
• Docket: Appeal No. 2
• Status: Published

Opinion

— Order unanimously affirmed, without costs. Memorandum: Plaintiffs appeal from a Special Term order which granted the motion of defendant Cole-Layer-Trumble Co., Inc. (Cole), made pursuant to CPLR 3211 (subd |a], par 7) for an order dismissing their complaint for failure to state a cause of action. Section 572 of the Real Property Tax Law authorizes the taxing authority to utilize the assistance of experts to appraise the value of property in the assessment of real property. The assessment process would be invalid if the assessors merely accepted the figures supplied by outside appraisers (Real Property Tax Law, § 572; Matter of Lessen v Stevens, 30 AD2d 740) as the primary responsibility for any assessment remains with the assessor (Real Property Tax Law, § 102, subds 2, 3). It is the obligation of the assessor to make the final determination after verification and independent evaluation of the expert’s figures. Cole’s authority was limited and subject to the assessor’s evaluation which is markedly different from those situations relied upon by plaintiffs (cf. Persichilli v Triborough Bridge & Tunnel Auth., 21 AD2d 819). Here, Cole owes no duty to plaintiffs for its work. In the absence of duty, there is no breach and without a breach there is no liability. Thus, Cole may not be held liable (Pulka v Edelman, 40 NY2d 781). Consequently, Special Term did not err in dismissing plaintiffs’ complaint. (Appeal from order of Supreme Court, Monroe County, Patlow, J. — dismiss action.) Present — Callahan, J. P., Doerr, Denman, Boomer and Schnepp, JJ.