IN RE: Leonard SOFIA

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

IN RE: Leonard SOFIA, Appellant, v. ASSESSOR OF TOWN OF EASTCHESTER, et al., Respondents.

Decided: May 20, 2002

ANITA R. FLORIO, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, and BARRY A. COZIER, JJ. Griffin, Coogan & Veneruso, P.C., Bronxville, N.Y. (Robert W. Wolper of counsel), for appellant. Thacher Proffitt & Wood, White Plains, N.Y. (Kevin J. Plunkett and Lino J. Sciarretta of counsel), for respondents.

In a proceeding pursuant to CPLR article 78 to review a determination of a Judicial Hearing Officer, dated April 9, 1999, which granted the petitioner's Small Claims Assessment Review application pursuant to Real Property Tax Law article 7 to reduce the tax assessment of his real property only to the extent of reducing the assessment by $750, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Palella, J.), entered December 29, 2000, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 In a Small Claims Assessment Review proceeding challenging inequality of assessment, “the homeowner is required to prove that his or her property is assessed at a higher percentage of full market value than either (1) the average of all other property on the assessment roll or (2) the average of residential property on the assessment roll” (Matter of Pace v. Assessor of Town of Islip, 252 A.D.2d 88, 90, 682 N.Y.S.2d 447).   Here, the petitioner adduced evidence tending to prove that his property was assessed at a higher value than 10 neighboring, allegedly comparable, properties on his block.   The Judicial Hearing Officer acknowledged, “[p]er photos submitted, the subject [property] is equal or inferior to many of the comps.”   However, even assuming that the petitioner's proof established that his property is overassessed as compared to these 10 neighboring properties, this does not satisfy his burden of proving that his property is overassessed as compared to “all other property on the assessment roll or (2) the average of residential property on the assessment roll” (id., emphasis added).   Notwithstanding their proximity, the 10 neighboring properties are not a sufficiently representative sample from which to determine the “average of residential property on the assessment roll,” so as to properly conclude that the petitioner's property is burdened by an objectionable unequal assessment (id).   Accordingly, the Judicial Hearing Officer's determination rejecting the petitioner's claims had a rational basis, and was properly upheld by the Supreme Court (see Matter of Barbera v. Assessor of Town of Pelham, 278 A.D.2d 412, 717 N.Y.S.2d 366;   Matter of Meola v. Assessor of Town of Colonie, 207 A.D.2d 593, 615 N.Y.S.2d 506).

The petitioner's remaining contentions are meritless.

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