IN RE: the Application of Erik R. Shewan Trust (2026)

Petitioner, Erik R. Shewan Trust ("Petitioner"), moves for relief pursuant to Civil Practice Law and Rules ("CPLR") Article 78 seeking to annul and vacate the determination made by a Small Claims Assessment Review ("SCAR") Hearing Officer following a hearing stemming from a real property tax assessment made by the Town of Greenburgh.

Respondent Westchester County (the "County") has moved to dismiss the petition, pursuant to CPLR §§ 3211(a)(7) and 7804(f), on the ground that the petition fails to state a cause of action as against the County. Respondents Town of Greenburgh, Assessor of the Town of Greenburgh, and Board of Assessment Review of the Town of Greenburgh (collectively, "Town Respondents") have also moved to dismiss the petition, pursuant to CPLR § 3211(a)(2) and (7), on the grounds that the petition fails to state a cause of action and that the Court lacks subject matter jurisdiction.¹ For the reasons set forth below, the Court now denies both motions to dismiss.

The Court read and considered the following papers electronically filed via NYSCEF in making its decision:

• Notice of Petition, Verified Petition, Affirmation of Joseph F. Albert, Esq., Affidavit of Erik R. Shewan, Exhibits 1-7, Memorandum of Law, Request for Judicial Intervention, and Affidavit of Service (NYSCEF Doc. Nos. 1-13, 15).

• Notice of Motion to Dismiss (Town Respondents), Affirmation of Dylan C. Harris, Esq., and Exhibits A-D (NYSCEF Doc. Nos. 16-21).

• Notice of Cross-Motion to Dismiss (Westchester County), Affirmation of Julie A. Ortiz, Esq., and Memorandum of Law (NYSCEF Doc. Nos. 26-28).

• Affirmation of Joseph F. Albert, Esq. in Opposition to Motions to Dismiss with Exhibit 8 (NYSCEF Doc. Nos. 23-24).

• Reply Affirmation of Dylan C. Harris, Esq. in Support of Motion to Dismiss, and Exhibits A-B (NYSCEF Doc. Nos. 30-32).

Petitioner owns a single-family residence located at 148 Rosehill Avenue, Tarrytown, in the Town of Greenburgh (the "subject property") (see Petition [NYSCEF Doc. No. 1], ¶ 2). The subject property was assessed at a value of $967,700 for property tax purposes for 2025 (see Ex. 1 to Petition [NYSCEF Doc. No. 5]). On or about June 15, 2025, Petitioner filed a Complaint on Real Property Assessment form to contest the 2025 assessed value (id.). Therein, Petitioner asked for the assessment to be reduced to $800,000, which Petitioner estimated to be the full market value of the subject property (id.). This complaint was denied (see Petition, ¶ 9).

On October 15, 2025, Petitioner filed a petition for SCAR review pursuant to Real Property Tax Law ("RPTL") § 730 (see Petition, ¶ 10; Ex. 2 to Petition [NYSCEF Doc. No. 6]). A Hearing Officer was assigned, and the SCAR trial was conducted on January 27, 2026 (see Petition, ¶ 11). On approximately February 26, 2026, the Hearing Officer issued a written decision, finding that the market value of the subject property should be reduced to $926,928 (see Ex. 3 to Petition [NYSCEF Doc. No. 7]). Petitioner now seeks judicial review of the SCAR decision.

Standard of Review

On a motion to dismiss an Article 78 petition for failure to state a cause of action under CPLR § 3211(a)(7), the allegations in the petition must be accepted as true, and the petitioner must be afforded the benefit of all favorable inferences (see Matter of Atane Engrs., Architects & Land Surveyors, D.P.C. v Nassau County, 227 AD3d 708, 709 [2d Dept 2024]). Where a court considers evidentiary material outside of the four corners of the pleadings, the question becomes whether the petitioner has a cause of action, and not simply whether she has sufficiently stated one (see id.; Matter of Madden v Village of Tuxedo Park, 192 AD3d 802, 804 [2d Dept 2021]). When evidentiary materials are considered, dismissal may be appropriate if such evidence shows that a fact as claimed by the petitioner is not actually a fact and no significant dispute exists regarding it (see Guggenheim v Ginzburg, 43 NY2d 268, 275 [1977]). "[W]hile the pleading is to be liberally construed, the court is not required to accept as true factual allegations that are plainly contradicted by documentary evidence" (Dixon v 105 W. 75th St. LLC, 148 AD3d 623, 626-627 [1st Dept 2017]).

Dismissal on the ground that the Court lacks subject matter jurisdiction, pursuant to CPLR § 3211(a)(2), may be sought if "the matter before the court was not the kind of matter on which the court had power to rule" (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203 [2013]). This ground for dismissal is inapplicable where the argument is simply that the elements of a claim are absent (see id., citing Lacks v Lacks, 41 NY2d 71, 74 [1976]).

Discussion

A. The County's Motion to Dismiss

The County seeks dismissal solely on the basis that the petition fails to assert any claim against the County and that the County had no involvement in the matter underlying this proceeding. Petitioner, in opposition, argues that the County is a necessary party as it might be inequitably affected by a judgment in this proceeding.

Pursuant to RPTL § 736(2), judicial review of a SCAR hearing determination may be sought by way of an Article 78 proceeding, and such proceeding "shall be maintained against the same parties named in the small claims petition." Thus, the statute is silent as to the need for any other parties in addition to the Town Respondents and certainly does not mandate additional parties. Nevertheless, one "who might be inequitably affected by a judgment" is considered a necessary party and must be joined in an Article 78 proceeding (see CPLR § 1001[a]; Matter of Greens at Half Hollow, LLC v Suffolk County Dept. of Pub. Works, 147 AD3d 942, 943 [2d Dept 2017]).

While the Court agrees that the petition does not appear to assert any claim directly at the County, the Court cannot conclude, at this early stage, that the County would not be adversely affected by a judgment in this proceeding. Accordingly, the County should remain as a respondent at this juncture. Therefore, the Court denies the County's motion to dismiss.

B. The Town Respondents' Motion to Dismiss

The Town Respondents move to dismiss the petition on the grounds that the Hearing Officer's decision was supported by the weight of the evidence and was not arbitrary and capricious. Petitioner, in opposition, argues that the Hearing Officer's decision was premised upon factual errors regarding certain adjustments for the subject property and that the Hearing Officer disregarded two comparable properties submitted by Petitioner.

The Court finds that the Town Respondents have not met their burden for dismissal under either CPLR § 3211(a)(2) or 3211(a)(7). The Town Respondents argued against the merits of the petition but did not set forth an objection in point of law such that would allow for pre-answer dismissal. Accepting the allegations in the petition as true and affording Petitioner the benefit of every favorable inference, the ultimate questions in this proceeding—whether the Hearing Officer made factual errors or made conclusions inconsistent with the evidence such that his determination lacked a rational basis—remain to be resolved. Nor do the parties' submissions conclusively dispose of any cause of action. As such, dismissal pursuant to CPLR § 3211(a)(7) is inappropriate at this juncture. Further, the Town Respondents have not advanced any specific arguments that the Court lacks subject matter over this proceeding; therefore, dismissal pursuant to CPLR § 3211(a)(2) is also inappropriate. Therefore, the Court denies the Town Respondents' motion to dismiss.

When a court denies a respondent's pre-answer motion to dismiss, "the court shall permit the respondent to answer, upon such terms as may be just" (CPLR § 7804[f]).² Such answer shall be accompanied by the administrative record and "affidavits or other written proof showing such evidentiary facts as shall entitle [the respondent] to a trial of any issue of fact" (CPLR § 7804[e]).

Accordingly, for all the foregoing reasons, it is hereby

ORDERED that the County's cross-motion to dismiss (motion sequence #3) is denied; and it is further

ORDERED that the Town Respondents' motion to dismiss (motion sequence #2) is denied; and it is further

ORDERED that the Respondents shall file and serve their answers to the petition on or before October 9, 2026; and it is further

ORDERED that Petitioner's reply, if any, shall be filed and served on or before October 30, 2026.

This constitutes the Decision and Order of the Court.

Dated: September 10, 2026

White Plains, New York

HON. SHERALYN PULVER

Acting Supreme Court Justice

FOOTNOTES

1.   The other respondents, The Village of Tarrytown and Public Schools of the Tarrytowns, have not responded to the petition.

2.   The Court of Appeals has suggested that an exception to this rule exists if the "facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer" (Matter of Kickertz v New York Univ., 25 NY3d 942, 944 [2015], quoting Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102 [1984]). Such is not the case here, however.

Sheralyn Pulver, J.