Citation Numbers: 110 Misc. 2d 130
Judges: Green
Filed Date: 7/24/1981
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Petitioner Village of Highland Falls has commenced a CPLR article 78 proceeding seeking to vacate the imposition of real estate taxes for the tax year 1978-1979 levied by the Town of Highlands and officials of the town upon an approximately five-acre parcel of property located in the Village of Highland Falls.
The court finds that personal service has been effected over the respondent Town of Highlands. The court is satisfied that more than minimal due process requirements of notice and opportunity' to defend have been afforded the respondent town in the manner of service effected herein (see 110 Manno Realty Corp. v Town of Huntington, 61 Misc 2d 702).
On March 17,1975, judgment of the Supreme Court was granted entitling petitioner village to take and hold by condemnation procedure for public use the five-acre parcel upon which the disputed real estate taxes have been levied. On October 1, 1974, the board of trustees of the petitioner village had adopted a resolution, to acquire the five acres for park purposes. On July 20, 1978, an order of the
This petition is brought by the Village of Highland Falls, the undisputed owner in fee of the five-acre parcel upon which the taxes were levied, to annul and cancel the real estate taxes. Petitioner further seeks that it be granted an exemption from real estate taxes, which application for said exemption petitioner contends has been wrongfully denied by the respondents.
The respondent town contends, among other things, that when the Supreme Court rendered its order vacating the deed of the property to the petitioner village, the ownership of the premises apparently reverted to the prior individual owners from whom the village acquired the property in condemnation, and that apparent ownership of th^ parcel by individuals was thus the status of the title to the property on the taxable status date for assessment for the year 1978-1979. Respondent contends that the failure
The order of the Appellate Division which reversed the erroneous order of the Supreme Court at Special Term is to be regarded as dating back to the time of the entry of the order or judgment appealed from (Stigwood Organisation v Devon Co., 91 Misc 2d 723; CPLR 5522). The respondent cannot rely upon a theory that title to the parcel was not at any time held by petitioner as far as relevant to the assessment contested herein. The order of the court at Special Term, having been voided, in no way affected petitioner’s title and title was thus always in petitioner (McCracken v Flanagan, 141 NY 174, 178).
The assessment of property for which mandatory exemption is provided by statute, if the statute’s exemption provisions are met, raises a jurisdictional issue so that although petitioner would be, because of the passage of time, precluded from reviewing the assessment under article 7 of the Real Property Tax Law (Real Property Tax Law, § 702), review would still be available in a declaratory judgment action or under CPLR article 78 (Matter of Glickenhaus Foundation v Board of Assessors of Town of Wawarsing, 40 AD2d 1059).
But this court is presented with an issue not squarely presented in Glickenhaus (supra) as to the effect of the Statute of Limitations provided for article 78 proceedings or declaratory judgment actions.
In support of its affirmative defense that the application of petitioner is time barred, the respondent town cites
The applicability of the shorter Statute of Limitations to a contest of the validity of an assessment based upon allegations of inequality of assessment was upheld by the Court of Appeals in Press v County of Monroe (supra), upon public policy considerations, namely, that as municipal governments (or a unit thereof) are dependent for operating funds on the collection of taxes and assessments and in turn such collection depends on the apportionment of the lump-sum revenue required among the many taxpayers,
There is a long line of authority which holds that when assessing officers act outside their jurisdiction, their acts are a nullity, the assessments void, and the taxes invalid (Buffalo Hebrew Christian Mission v City of Syracuse, 33 AD2d 152, 155); and it has been held that the issue of lack of jurisdiction may be raised at any time (People ex rel. Erie R.R. Co. v State Tax Comm., 246 NY 322, 325, 326), unlike an attack based on the illegality of assessment based upon claim of inequality or over valuation which is subject to the Statute of Limitations provided for proceedings taken under CPLR article 78 (Solnick v Whalen, supra).
If the property otherwise qualifies for the exemption, it is therefore of a genre of cases which would not be time barred under Solnick v Whalen (supra). The public policy considerations expanded upon in Press v County of Monroe (supra) give way when balanced against the public policy considerations underlying the exemptions and the inherent unjustness and illegality in permitting the assessment and taxation of property that, as far as the assessing officer is concerned, does not even exist (Elmhurst Fire Co. v City of New York, 213 NY 87, 90).
The court is satisfied that upon the proof submitted the subject parcel of property was acquired for public purposes and is therefore exempt from assessment and taxation (Real Property Tax Law, § 406, subd 1).
Accordingly, all taxes assessed and levied by respondents upon the property owned by petitioner being the premises conveyed to petitioner in a deed recorded in the office of the Clerk of the County of Orange on May 16,1977 in Liber 2067 of Deeds at page 193, are hereby canceled and the property is stricken from the assessment rolls of
The rights of respondents as among and between themselves to charge back taxes shall be as provided by law in accordance with the judgment of this court to be entered herein.