EKLECCO v. LONGO (2000)

In an action, inter alia, for a judgment declaring that the assessment, imposition, and collection of real estate taxes by the defendants is unconstitutional, the plaintiff appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Rockland County (Meehan, J.), entered March 2, 1999, as, upon converting that part of the complaint which alleged that the plaintiff was denied due process before the Board of Assessment Review into a proceeding pursuant to CPLR article 78, granted so much of the defendants' motion which was to dismiss that part of the complaint and dismissed the proceeding.

ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was to dismiss that part of the complaint which alleged that the plaintiff was denied due process before the Board of Assessment Review is denied.

 The plaintiff did not waive its objection to the active role of the independent appraiser of its property at the Board of Assessment Review hearing, since it was unaware at that time that the appraiser had a financial interest in the outcome of the proceeding (see, Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968, 525 N.Y.S.2d 793, 520 N.E.2d 512).   Moreover, the Supreme Court improperly dismissed the plaintiff's cause of action alleging a violation of its due process rights, as the plaintiff alleged facts which tended to show bias and were not “flatly contradicted by documentary evidence” (Gertler v. Goodgold, 107 A.D.2d 481, 485, 487 N.Y.S.2d 565, affd. 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748;  see, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749;  Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Matter of Beer Garden v. New York State Liq. Auth., 79 N.Y.2d 266, 582 N.Y.S.2d 65, 590 N.E.2d 1193;  Doria v. Masucci, 230 A.D.2d 764, 646 N.Y.S.2d 363).

The remaining contentions are without merit.

MEMORANDUM BY THE COURT.