NYCTL 1996 TRUST v. The People of the State of New York, et al., Defendants. (2003)

Orders, Supreme Court, Bronx County (Bertram Katz, J.), entered October 20, 2000, which, in actions to foreclose tax liens assigned to plaintiff Trust by the City of New York, upon plaintiff's motions to discontinue the actions as moot, inter alia, dismissed defendants' counterclaims, unanimously affirmed, without costs.

Defendants' counterclaims challenge the amounts of the tax liens and seek accountings of the underlying assessments.   Shortly after commencement of the actions, defendants paid the tax liens while advising plaintiff that the payments were without prejudice to their claims.   Plaintiff then moved to discontinue the actions “on the ground that the claims herein are moot.”   We reject defendants' argument that the dismissal of their counterclaims upon the granting of plaintiff's motions to discontinue was error.   Any challenges defendants may have had to the City's tax assessments should have been brought in timely article 78 proceedings;  here, article 78 relief was time-barred long before the instant actions were commenced.   Defendants' counterclaims are therefore without merit and were properly dismissed (cf.  Triway Realty Corp. v. City of New York, 218 A.D.2d 592, 594, 645 N.Y.S.2d 464), even in the absence of motions specifically seeking their dismissal (cf.  Kole v. Kaufman, 42 A.D.2d 733, 346 N.Y.S.2d 742, lv. denied 33 N.Y.2d 518, 350 N.Y.S.2d 1025, 305 N.E.2d 496).   We have considered defendants' other arguments and find them unavailing.