IN RE: David Weiner

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

IN RE: David Weiner, et al., respondents, v. Board of Assessors and/or Assessor of Town/Village of Harrison, et al., appellants.

2008-09953 (Index Nos. 17864/06, 19021/07)

Decided: January 26, 2010

REINALDO E. RIVERA, J.P. MARK C. DILLON ARIEL E. BELEN SHERI S. ROMAN, JJ. Ira S. Levy, Rye Brook, N.Y., for appellants. Herman Katz Cangemi & Clyne, LLP, Garden City, N.Y. (Kevin M. Clyne, Robert S. Katz, and W. Scott Kershaw of counsel), for respondents.

Argued-December 18, 2009

DECISION & ORDER

In two related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2007 and 2008, respectively, the Assessor of the Town/Village of Harrison and the Board of Assessment Review of the Town/Village of Harrison appeal, as limited by their brief, from so much an order of the Supreme Court, Westchester County (LaCava, J.) entered September 17, 2008, as granted that branch of the petitioners' motion which was for summary judgment on the causes of action alleging improper and unlawful tax assessment for tax years 2007 and 2008 on the basis of selective reassessment, in effect, granted those branches of the petitions which were to annul the real property assessments for tax years 2007 and 2008, remitted the matter to the Assessor of the Town/Village of Harrison for a new assessment for the tax years 2007 and 2008, and directed that the new assessments were to be determined by adding only the equalized value of the improvements to the subject property to the assessment for tax year 2001, and denied their cross motion for summary judgment dismissing the petitions.

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

“It is well settled that a system of selective reassessment that has no rational basis in law violates the equal protection provisions of the Constitutions of the United States and the State of New York” (Matter of Mundinger v. Assessor of City of Rye, 187 A.D.2d 594, 595).   Nevertheless, “reassessment upon improvement is not illegal in and of itself ․ [n]or is the use of the purchase price or the current market value to reach a tax assessment in and of itself unconstitutional ‘so long as the implicit policy is applied even-handedly to all similarly situated property’ ” (Matter of Stern v. Assessor of City of Rye, 268 A.D.2d 482, 483, quoting Allegheny Pittsburgh Coal Co. v Commission of Webster Cty., 488 U.S. 336, 345;  see Nash v Assessor of Town of Southampton, 168 A.D.2d 102).

In this case, there was no evidence that there was a “comprehensive assessment plan ․ to reassess the entire tax roll to reflect the comparable market value of all appreciated properties” (Matter of Stern v. Assessor of City of Rye, 268 A.D.2d at 483;  see Matter of DeLeonardis v Assessor of City of Mount Vernon, 226 A.D.2d 530, 532).   Accordingly, the determination of the Assessor of the Town/Village of Harrision (hereinafter the assessor) to reassess the petitioner's property based upon its enhanced market value as a result of recent alterations to the property, “rather than adding the value of the improvements to the prior assessment” (Matter of Stern v. Assessor of City of Rye, 268 A.D.2d at 483) imposed, upon the property, a discriminatory tax burden not imposed on similarly-situated properties that had also appreciated, but which had no recent improvements (see Matter of Stern v. Assessor of City of Rye, 268 A.D.2d 482;  Matter of DeLeonardis v Assessor of City of Mount Vernon, 226 A.D.2d at 532;  Matter of Krugman v Board of Assessors of Vil. of Atl. Beach, 141 A.D.2d 175, 183-184).

The petitioners established their prima facie entitlement to judgment as a matter of law on the issue of whether the assessor improperly reassessed their property on a selective basis, and the appellants failed to raise a triable issue of fact in opposition.   Accordingly, the court properly granted that branch of the petitioner's motion which was for summary judgment on the causes of action alleging improper and unlawful tax assessments for tax years 2007 and 2008 on the ground of selective reassessment, and properly denied the appellants' cross motion for summary judgment dismissing the petitions.   Consequently, the court properly, in effect, granted those branches of the petitions which were to annul those tax assessments.

RIVERA, J.P., DILLON, BELEN and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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