AES SOMERSET LLC v. TOWN OF SOMERSET (2005)

 Petitioner commenced this hybrid CPLR article 78/ RPTL article 7 proceeding challenging the assessment placed on petitioner's property on the 2004 tax rolls.   Supreme Court properly dismissed the petition to the extent that petitioner sought review of its tax assessment pursuant to CPLR article 78.  “[U]nless it is asserted that the taxing authority acted entirely without jurisdiction or that the tax itself is unconstitutional, the sole vehicle for review of a tax assessment is pursuant to [RPTL] article 7” (Samuels v. Town of Clarkson, 91 A.D.2d 836, 837, 458 N.Y.S.2d 392;  see Matter of Cassos v. King, 15 A.D.3d 758, 789 N.Y.S.2d 452;  Matter of General Elec. Co. v. MacIsaac, 292 A.D.2d 689, 690-691, 739 N.Y.S.2d 768;  Matter of Bassett Mtn. Recreation Ctr. v. Town of Jay Bd. of Assessors, 232 A.D.2d 934, 649 N.Y.S.2d 217).   Here, any recovery by petitioner “would have to be founded upon a determination of the illegality of the tax or upon an excessive” or unequal assessment of the subject property (Samuels, 91 A.D.2d at 837, 458 N.Y.S.2d 392).   Petitioner thus must pursue its relief pursuant to the provisions of RPTL article 7 despite having framed its challenge as going to “the methods employed rather than the individual evaluations” (Samuels, 91 A.D.2d at 837, 458 N.Y.S.2d 392).   The cases relied upon by petitioner, e.g., Matter of Gray v. Huonker, 305 A.D.2d 1081, 758 N.Y.S.2d 731, Matter of Averbach v. Board of Assessors of Town of Delhi, 176 A.D.2d 1151, 575 N.Y.S.2d 964 and Matter of Krugman v. Board of Assessors of Vil. of Atl. Beach, 141 A.D.2d 175, 533 N.Y.S.2d 495, appeal dismissed 73 N.Y.2d 872, 537 N.Y.S.2d 498, 534 N.E.2d 336 are distinguishable from the case at bar (see generally General Elec. Co., 292 A.D.2d at 690-691, 739 N.Y.S.2d 768).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: