IN RE: Virginia ADAMS et al. (2008)

Appeal from a judgment of the Supreme Court (Dawson, J.), entered September 6, 2007 in Essex County, which, in a proceeding pursuant to CPLR article 78, partially granted respondents' motion to dismiss the amended petition.

Petitioners are owners of real property in the Town of Schroon, Essex County.   They commenced this proceeding against respondent Town of Schroon and its Board of Assessors, among others, seeking to nullify the Town's 2006 tax assessment on the ground that it was, among other things, nonuniform.   Respondents moved to dismiss the amended petition pursuant to CPLR 3211(a), 3212 and 7804(f).  Supreme Court dismissed each of petitioners' claims challenging the uniformity of the assessments, finding that such claims must be brought in an RPTL article 7 proceeding, and dismissed, for lack of standing and subject matter jurisdiction, petitioners' claim that an incorrect equalization rate was employed in making the assessments.¹  As to petitioners' claim of favoritism on the part of respondents, Supreme Court determined that petitioners' allegations were sufficient to survive the motion to dismiss.   Petitioners appeal, and we affirm.

 A proceeding pursuant to RPTL article 7 is the “exclusive remedy by which instances of illegality, overvaluation or inequality as to assessments may be asserted” (Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v. Town of Fallsburg, 78 N.Y.2d 194, 204, 573 N.Y.S.2d 43, 577 N.E.2d 34 [1991];  see RPTL 700[1];  Matter of Averbach v. Board of Assessors of Town of Delhi, 176 A.D.2d 1151, 1152, 575 N.Y.S.2d 964 [1991] ).   However, a CPLR article 78 proceeding is appropriate “where a party challenges a tax assessment as illegal, i.e., that the taxing authority exceeded its power to tax, or that the tax itself or the method employed in taxing is unconstitutional” (Matter of Brooklyn Union Gas Co. v. State Bd. of Real Prop. Servs., 246 A.D.2d 898, 899, 668 N.Y.S.2d 282 [1998];  see Matter of Cassos v. King, 15 A.D.3d 758, 758, 789 N.Y.S.2d 452 [2005] ).   With respect to the methodology exception, a CPLR article 78 proceeding is proper only if the challenge is based upon the particular method employed in the assessment of several properties rather than the overvaluation or undervaluation of specific properties (see Matter of General Elec. Co. v. MacIsaac, 292 A.D.2d 689, 691, 739 N.Y.S.2d 768 [2002];  Matter of Averbach v. Board of Assessors of Town of Delhi, 176 A.D.2d at 1152, 575 N.Y.S.2d 964;  Matter of Krugman v. Board of Assessors of Vil. of Atl. Beach, 141 A.D.2d 175, 180, 533 N.Y.S.2d 495 [1988], appeal dismissed 73 N.Y.2d 872, 537 N.Y.S.2d 498, 534 N.E.2d 336 [1989] ).

 Here, petitioners maintain that their claims fall within this methodology exception.   They base their argument on their expert's conclusion that, in calculating the coefficient of dispersion and the price related differential of a sample of property sales between July 1, 2005 and June 30, 2006,² parcels were either overvalued or undervalued in respondents' assessment.   Critically, however, petitioners have made no allegations regarding any specific defects in respondents' method of assessment and, in fact, have failed to even identify a particular “methodology” used.   While they claim that they need not point to any particular “method” employed by respondents in order to pursue their claims of inequality through a CPLR article 78 proceeding, but instead may rely upon evidence establishing a general lack of uniformity, petitioners fail to cite to any authority supporting such an assertion.³  Indeed, it is firmly established that “ ‘[m]ere allegations, unsupported by evidentiary matter, that the attack is on the methods employed rather than individual evaluations, are not enough to relieve [petitioners] of the obligation to pursue their relief via the provisions of [RPTL] article 7’ ” (Matter of Krugman v. Board of Assessors of Vil. of Atl. Beach, 141 A.D.2d at 180, 533 N.Y.S.2d 495, quoting Samuels v. Town of Clarkson, 91 A.D.2d 836, 837, 458 N.Y.S.2d 392 [1982];  see Matter of Board of Mgrs. of Greens of N. Hills Condominium v. Board of Assessors of County of Nassau, 202 A.D.2d 417, 419–420, 608 N.Y.S.2d 694 [1994], lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415 [1994] ).

 In our view, a broad claim of inequality will not suffice because, by “fail[ing] to identify with any particularity any ‘method’ of assessment which [they are] attacking [,] any review of the assessments would necessitate inquiry into the Assessor's mental processes, judgments, and observations, an inquiry limited to [RPTL] article 7 proceedings” (Abrams v. Long Is. Light. Co., 117 A.D.2d 764, 765, 499 N.Y.S.2d 97 [1986], appeal dismissed 68 N.Y.2d 752, 506 N.Y.S.2d 1034, 497 N.E.2d 708 [1986], lv. denied 69 N.Y.2d 601, 511 N.Y.S.2d 1027, 503 N.E.2d 695 [1986];  see Matter of Board of Mgrs. of Greens of N. Hills Condominium v. Board of Assessors of Nassau County, 202 A.D.2d at 419–420, 608 N.Y.S.2d 694;  see also C.H.O.B. Assoc. v. Board of Assessors of County of Nassau, 45 Misc.2d 184, 187, 257 N.Y.S.2d 31 [Sup. Ct., Nassau County 1964], affd. without op. 22 A.D.2d 1015, 256 N.Y.S.2d 550 [1964], affd. 16 N.Y.2d 779, 262 N.Y.S.2d 501, 209 N.E.2d 820 [1965] ).   Thus, as petitioners have failed to provide sufficient proof to demonstrate that their challenge to the assessment is based upon any methodology employed by respondents, Supreme Court properly concluded that the sole remedy for their claims of inequality was by way of an RPTL article 7 proceeding (see Matter of M. Kaufman 42nd St. Co. v. Board of Assessors of Atl. Beach, 273 A.D.2d 239, 239, 709 N.Y.S.2d 445 [2000];  Abrams v. Long Is. Light. Co., 117 A.D.2d at 765, 499 N.Y.S.2d 97).   Further, as the instant proceeding was not commenced within the 30–day period mandated by RPTL 702(2), we are unable to consider it as one brought pursuant to RPTL article 7 (see Matter of Cassos v. King, 15 A.D.3d at 759, 789 N.Y.S.2d 452;  Matter of Bassett Mtn. Recreation Ctr. Inc. v. Town of Jay Bd. of Assessors, 232 A.D.2d 934, 934, 649 N.Y.S.2d 217 [1996] ).

 Petitioners' claim that they were denied due process is similarly unavailing.   In the context of tax assessments, due process requires an opportunity for the taxpayer's grievance to be heard (see Matter of Niagara Mohawk Power Corp. v. Town of Bethlehem, 16 A.D.3d 888, 890, 792 N.Y.S.2d 209 [2005], affd. sub. nom. Matter of Niagara Mohawk Power Corp. v. Town of Watertown, 6 N.Y.3d 744, 810 N.Y.S.2d 399, 843 N.E.2d 1138 [2005] ).   Here, petitioners had the opportunity to challenge their assessments by filing a complaint with the board of assessment review (see RPTL 524, 525) or commencing an RPTL article 7 proceeding (see RPTL 700, 724).

In light of our determination, petitioners' remaining claims have been rendered academic.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Petitioners do not challenge the equalization rate determination in their brief on appeal and, therefore, we deem the issue abandoned (see Rossi v. Attanasio, 48 A.D.3d 1025, 1027 n. 3, 852 N.Y.S.2d 465 [2008] ).

2.   In light of our decision, we need not address whether petitioners relied upon sales during the proper time period.

3.   To the contrary, in cases permitting a CPLR article 78 challenge to a municipality's tax assessment based on an allegedly impermissible methodology, petitioners have identified the specific method employed by the municipality (see e.g. Matter of Dudley v. Kerwick, 52 N.Y.2d 542, 439 N.Y.S.2d 305, 421 N.E.2d 797 [1981];  Matter of Resnick v. Town of Canaan, 38 A.D.3d 949, 832 N.Y.S.2d 102 [2007];  Matter of Montgomery v. Board of Assessment Review of Town of Union, 30 A.D.3d 747, 817 N.Y.S.2d 419 [2006];  Matter of Brooklyn Union Gas Co. v. State Bd. of Real Prop. Servs., supra;  Matter of Adams v. Welch, 188 A.D.2d 784, 591 N.Y.S.2d 226 [1992];  Matter of Averbach v Board of Assessors, supra;  Matter of Krugman v. Board of Assessors, supra;  Matter of 22 Park Place Coop. v. Board of Assessors of County of Nassau, 102 A.D.2d 893, 476 N.Y.S.2d 935 [1984] ).

PETERS, J.

CARDONA, P.J., CARPINELLO, KAVANAGH and STEIN, JJ., concur.