IN RE: TOWN OF RIVERHEAD

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

IN RE: TOWN OF RIVERHEAD, et al., petitioners, v. NEW YORK STATE OFFICE OF REAL PROPERTY SERVICES, et al., respondents.

Decided: September 26, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, FRED T. SANTUCCI, and WILLIAM F. MASTRO, JJ. Dawn C. Thomas, Town Attorney, Riverhead, N.Y. (Scott DeSimone of counsel), for petitioners. Eliot Spitzer, Attorney-General, Albany, N.Y. (Nancy A. Spiegel and Robert M. Goldfarb of counsel), for respondent New York State Board of Real Property Services. Stephen Brown, Town Attorney, Southampton, N.Y. (Eileen A. Powers of counsel), for respondent Town of Southampton.

Proceeding pursuant to CPLR article 78 and RPTL 1218 to review a determination of the New York State Board of Real Property Services, dated August 12, 2003, which, inter alia, established a special equalization rate of 2.23 for the 2003-2004 assessment roll of the Riverhead School District segment of the Town of Southampton.

ADJUDGED that the petition is dismissed, with one bill of costs.

 The petition must be dismissed because the petitioner Town of Riverhead lacks capacity to institute this proceeding, and the individual petitioner, Edward Densieski, who owns assessed property within Riverhead, lacks standing (see Matter of Town of Riverhead v. New York State Bd. of Real Prop. Servs., 5 N.Y.3d 36, 799 N.Y.S.2d 753, 832 N.E.2d 1169).

 Capacity “concerns a litigant's power to appear and bring its grievance before the court” (Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 155, 615 N.Y.S.2d 644, 639 N.E.2d 1;  see Matter of the Town of Riverhead v. New York State Bd. of Real Prop. Servs., supra;  Silver v. Pataki, 96 N.Y.2d 532, 537, 730 N.Y.S.2d 482, 755 N.E.2d 842).   Riverhead is a town.   It is thus a government entity created by legislative enactment, and an artificial creature of statute lacking any inherent or common-law right to sue (see Community Bd. 7 of Borough of Manhattan v. Schaffer, supra at 155-156, 615 N.Y.S.2d 644, 639 N.E.2d 1).   A town's right to sue, if it exists, is derived from legislation (id. at 156, 615 N.Y.S.2d 644, 639 N.E.2d 1).   In the absence of express statutory authority, or other exceptions to the general rule not present here, a town has no authority to bring suit against the state itself (see Matter of Town of Riverhead v. New York State Bd. of Real Prop. Servs., supra;  City of New York v. State of New York, 86 N.Y.2d 286, 292, 631 N.Y.S.2d 553, 655 N.E.2d 649;  see also Black River Regulating District v. Adirondack League Club, 307 N.Y. 475, 489-490, 121 N.E.2d 428;  Matter of County of Oswego v. Travis, 16 A.D.3d 733, 791 N.Y.S.2d 189;  Gulotta v. State of New York, 228 A.D.2d 555, 556, 645 N.Y.S.2d 41;  cf. Matter of Board of Educ. of Roosevelt Union Free School Dist. v. Board of Trustees of State Univ. of N.Y., 282 A.D.2d 166, 723 N.Y.S.2d 262).   Contrary to Riverhead's contentions, neither Town Law § 65(1) nor RPTL 1218 empower it with the capacity to prosecute this proceeding, and capacity may not be implied by necessity (see Matter of the Town of Riverhead v. New York State Board of Real Property Services, supra ).

 In addition, Densieski lacks standing to sue.   In this proceeding, RPTL 1218, which creates a right to seek review of a certain determination made by the New York State Board of Real Property Services (hereinafter the Board), confers that right only upon the municipality whose equalization rate was established, and not upon property owners in other towns (see Matter of Town of Riverhead v. New York State Bd. of Real Prop. Servs., supra;  see generally Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034).   Hence, Densieski falls outside of the limited class of petitioners authorized by statute.   Moreover, Densieski has not established an injury in fact which falls within the zone of interest sought to be promoted by RPTL article 12 (see Matter of Town of Riverhead v. New York State Bd. of Real Prop. Servs., 7 A.D.3d 934, 936, 777 N.Y.S.2d 533, affd. 5 N.Y.3d 36, 799 N.Y.S.2d 753, 832 N.E.2d 1169).   In any event, an individual taxpayer such as Densieski lacks standing to challenge the methodology employed by the Board to calculate equalization rates, even when those rates are calculated for the municipality in which the taxpayer owns property (see Ed Guth Realty v. Gingold, 34 N.Y.2d 440, 450, 358 N.Y.S.2d 367, 315 N.E.2d 441;   Matter of O'Brien v. Assessor of the Town of Mamaroneck, 20 N.Y.2d 587, 596, 285 N.Y.S.2d 843, 232 N.E.2d 844;  Matter of Town of Riverhead v. New York State Bd. of Real Prop. Servs., supra at 936, 777 N.Y.S.2d 533;  Rokowsky v. State Bd. of Equalization and Assessment, 172 A.D.2d 93, 95, 576 N.Y.S.2d 913;  Central Buffalo Project Corp. v. City of Buffalo, 74 A.D.2d 336, 340, 428 N.Y.S.2d 102, affd. 52 N.Y.2d 986, 438 N.Y.S.2d 79, 419 N.E.2d 1078;   860 Executive Towers v. Board of Assessors of the County of Nassau, 53 A.D.2d 463, 467, 385 N.Y.S.2d 604, affd. sub nom. Matter of Pierre Pellaton Apts. v. Board of Assessors of County of Nassau, 43 N.Y.2d 769, 401 N.Y.S.2d 1013, 372 N.E.2d 801).

In light of the foregoing, we do not reach the petitioners' remaining contentions.

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