SCHWANER v. COLLINS

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of David C. SCHWANER, Sue A. Miller, Frederick A. German, Jr., E. David Appelbaum, A. White, Paul O'Brien, Carl A. Reed and Wanda Polisseni, Petitioners-Appellants, v. Donald COLLINS, Assessor for Town of Canandaigua, and Town of Canandaigua, Respondents-Respondents.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., SCUDDER, GORSKI, MARTOCHE, AND LAWTON, JJ. Law Offices of James S. Grossman, Rochester (James S. Grossman of Counsel), for Petitioners-Appellants. Harris Beach LLP, Pittsford (John T. Refermat of Counsel), for Respondents-Respondents.

Petitioners commenced this special proceeding pursuant to CPLR article 78 and RPTL article 7 to challenge, inter alia, the methodology by which respondent Donald Collins, Assessor for respondent Town of Canandaigua, prepared the 2002 assessment roll.   Specifically, petitioners, all recent purchasers of lakefront or lakeview property, alleged that the 2002 assessment constituted an improper assessment because property that was recently acquired was assessed with a larger percentage increase than property that had not been recently acquired.   Respondents moved to dismiss the petition pursuant to CPLR 3211(a)(1) and (7) and 7804(f), arguing, inter alia, that the “proceeding fails as a matter of law pursuant to [a]rticle 78.”   Supreme Court granted the motion and dismissed that part of the petition seeking relief pursuant to CPLR article 78, and petitioners appealed.   We reverse.

 “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511).  “A motion to dismiss under CPLR 3211(a)(7) should not be granted unless, within the four corners of the pleading, liberally construed, the pleader[s have] failed to state a cause of action, or unless documents and other submissions establish conclusively that [the pleaders have] no cause of action” (Grossman v. Pharmhouse Corp., 234 A.D.2d 918, 919, 651 N.Y.S.2d 797;  see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636, 389 N.Y.S.2d 314, 357 N.E.2d 970).  “[E]very favorable inference must be afforded the facts alleged in the [petition] and in the various motion papers submitted” by the nonmoving party (Held v. Kaufman, 91 N.Y.2d 425, 432, 671 N.Y.S.2d 429, 694 N.E.2d 430).   Viewing the petition in that light, we conclude that petitioners have set forth a cause of action under the Equal Protection Clauses of the United States and New York Constitutions by setting forth facts demonstrating gross disparities in the assessed value of similarly situated property (see Allegheny Pittsburgh Coal Co. v. County Commn. of Webster County, W.Va., 488 U.S. 336, 343-346, 109 S.Ct. 633, 102 L.Ed.2d 688;  Matter of Gray v. Huonker, 305 A.D.2d 1081, 1082, 758 N.Y.S.2d 731).   Here, the petition sets forth specific examples of gross disparities in the assessed value of allegedly comparable property, and thus that part of the petition seeking relief pursuant to CPLR article 78 should not have been dismissed at this, “the earliest pleadings[,] stage” of the litigation (Held, 91 N.Y.2d at 432, 671 N.Y.S.2d 429, 694 N.E.2d 430).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the first cause of action is reinstated.

MEMORANDUM: