Sterling Estates, Inc. v. Board of Assessors

104 A.D.2d 599, 479 N.Y.S.2d 381, 1984 N.Y. App. Div. LEXIS 20037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 10, 1984
• Status: Published

Opinions

— In proceedings pursuant to article 7 of the Real Property Tax Law, petitioner appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Nassau County (Farley, J.), dated March 14, 1983, which, inter alia, denied its motion to amend its petitions to increase the amount of the claimed reductions.

Order affirmed insofar as appealed from, without costs or disbursements.

Although ultimately only the total assessment is subject to judicial review pursuant to article 7 of the Real Property Tax Law (Real Property Tax Law, § 502, subd 3), the petitioner at bar, having voluntarily chosen not to protest or otherwise draw into question the accuracy of the assessments regarding the improvements to its realty for the tax years in question, implicitly acknowledged the propriety of those assessments, and may not, now, over six years later, be heard to complain that they were unequal, excessive or otherwise invalid (see Matter of City of Little Falls v Board of Assessors, 68 AD2d 734). Grant Co. v Srogi (52 NY2d 496) is distinguishable on its facts, as the court therein was confronted with a situation in which the total assessment had been duly protested by the petitioner, and all that the court was required to determine was whether the “reformation of the petitions to conform with the proof [of value adduced at trial] was a remedy which was within the court’s power to grant and * * * was not affected by any error of law” (Grant Co. v Srogi, supra, p 513, n 2). The situation here is markedly different, as we are called upon to determine whether the petitions which have been filed in tax certiorari proceedings may be amended, in some cases 15 years after the fact, to add allegations of injury which had not theretofore been interposed (cf. Matter of Waldbaums #122 v Board of Assessors, 58 NY2d 818).

At least under the circumstances of this case, where the original protests and petitions, by clear implication, accepted the accuracy of the county’s assessment regarding the valuation of its improvements, the petitioner may not now attempt to amend its petitions in order to draw into question the accuracy of those valuations, thereby altering the fundamental thrust of its case. The granting of leave to amend in this case is not, in our view, mandated by the Court of Appeals decision in Grant Co. v Srogi (supra). Moreover, assuming, arguendo, that the court was empowered to grant the requested amendments, we cannot conclude on this record that Special Term’s refusal to do so constituted an abuse of discretion.

We have considered the petitioner’s remaining contentions and find them to be without merit. Gibbons, J. P., Niehoff and Boyers, JJ., concur.