IN RE: BENJAMIN BEECHWOOD OCEAN WAY (2026)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review two determinations of the Department of Finance of the City of New York, both dated September 2, 2022, which denied the petitioner's two applications for tax reassessment and reclassification of certain real properties, the appeal is from a judgment of the Supreme Court, Queens County (Tracy Capatano–Fox, J.), entered June 26, 2023.  The judgment, insofar as appealed from, granted the petition and annulled the determinations.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The petitioner (hereinafter the taxpayer) submitted requests to the Department of Finance of the City of New York (hereinafter the DOF) to reclassify and reassess two vacant lots located in Queens (hereinafter the properties) from tax class four, building V1, to tax class one, building class V0. In determinations dated September 2, 2022, the DOF denied the requests, finding the properties were appropriately classified.  Thereafter, the taxpayer commenced this CPLR article 78 proceeding against the DOF's Commissioner and City of New York (hereinafter together the appellants) to annul the determinations.  In a judgment entered June 26, 2023, the Supreme Court, inter alia, granted the petition and annulled the determinations.  This appeal ensued.

Administrative Code of the City of New York § 11–206 provides that “[t]he commissioner of finance may correct any assessment or tax which is erroneous due to a clerical error or to an error of description contained in the several books of annual record of assessed valuations, or in the assessments-rolls.”  Pursuant to the Rules of the City of New York Department of Finance in effect at the time of the determinations (see id. former §§ 53–01, 53–02 [hereinafter together the clerical error rules] ), an “[i]naccurate building class that affected assessed value” constitutes a clerical error or error of description (19 RCNY former § 53–02[b][10] ).  The clerical error rules provided that such errors of description may be corrected by application to the City of New York within six years of the error (see id. former §§ 53–01, 53–02).  Contrary to the appellants' contention, the Supreme Court did not err by reaching the merits of the petition in this CPLR article 78 proceeding (see Matter of 232 Smith St., LLC v Soliman, 235 AD3d 967, 968;  Matter of Block 3738 Constr.  Corp. v Niblack, 234 AD3d 955, 957;  Matter of Better World Real Estate Group v New York City Dept. of Fin., 122 AD3d 27, 33).  To the extent that the decision of the Appellate Division, First Department, in Matter of 3061–63 Third Ave. LLC v Soliman (223 AD3d 548) is inconsistent with our conclusion, we decline to follow it, and we note that the First Department has declined to follow it as well (see Matter of Fordham Hill Owners Corp. v Soliman, 237 AD3d 402, 407).

“ ‘Judicial review of an administrative determination not made after a quasi-judicial hearing is limited to whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion’ ” (Matter of 232 Smith St., LLC v. Soliman, 235 AD3d at 968, quoting Matter of Lake v New York City Employees' Retirement Sys., 202 AD3d 682, 683;  see CPLR 7803).  In New York City, tax class one property includes “all vacant land located within a special assessing unit which is a city” that is either zoned residential or situated immediately adjacent to qualifying residential property, “other than such land in the borough of Manhattan” (RPTL 1802[1][d];  see 1801[a];  Matter of 232 Smith St., LLC v. Soliman, 235 AD3d at 968).  Tax class four property consists of “all other real property which is not designated as class one, class two, or class three” (RPTL 1802[1] ).  “Accordingly, vacant land that is zoned residential and located within New York City but outside of the borough of Manhattan is properly classified as tax class one, regardless of a commercial overlay” (Matter of 232 Smith St., LLC v. Soliman, 235 AD3d at 968;  see Matter of Shore Dev. Partners v Board of Assessors, 82 AD3d 988, 990).

Here, the properties are two vacant lots located in Queens that were zoned R6 residential.  The appellants should have classified the parcels as tax class one, building class V0, regardless of any commercial overlay, and their failure to do so was an error of law (see RPTL 1802[1];  Matter of 232 Smith St., LLC v. Soliman, 235 AD3d at 968).

The appellants' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the petition and annulled the determinations.

DILLON, J.P., DUFFY, LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.