41 Kew Gardens Road Associates v. Tyburski

84 Citing cases

  1. Boening v. Nassau Cnty. Dep't of Assessment

    157 A.D.3d 757 (N.Y. App. Div. 2018)   Cited 8 times

    As the wording of this provision makes clear, however, this power to enact local laws applies only with respect to local taxes that have been "authorized by the legislature" ( N.Y. Const, art IX, § 2 [c][ii][8] ). Indeed, "the Constitution expressly imbues the state government, rather than any locality, with ‘[t]he power of taxation’ " ( Matter of Baldwin Union Free Sch. Dist. v. County of Nassau, 22 N.Y.3d at 619, 986 N.Y.S.2d 1, 9 N.E.3d 351, quoting N.Y. Const, art XVI, § 1 ; see41 Kew Gardens Rd. Assoc. v. Tyburski, 70 N.Y.2d 325, 333, 520 N.Y.S.2d 544, 514 N.E.2d 1114 ). The N.Y. Constitution provides that "[a]ny laws which delegate the taxing power shall specify the types of taxes which may be imposed thereunder and provide for their review" ( N.Y. Const, art XVI, § 1 ).

  2. In re Fifty-Sixty Saginaw v. Assessor of Henrietta

    2007 N.Y. Slip Op. 52558 (N.Y. Misc. 2007)

    The income approach is the preferred method of appraising income producing property [ See e.g. Merrick Holding Corp. v. Board of Assessors of the County of Nassau, 45 NY2d 538, 542, 410 NYS2d 565, 567 (1978), ("in the absence of sufficiently reliable market data, alternative methods such as income capitalization or, where necessary, reproduction cost, may be employed [citations omitted]. Not surprisingly, as to income producing property, income capitalization has been the preferred mode . . . "); 41 Kew Gardens Road Associates v. Tyburski, 70 NY2d 325, 331, 520 NYS2d 544, 546 (1987), ("The income capitalization approach is generally regarded as the preferred method of determining the value of income-producing property, which is the issue in this case."); Farash v. Smith, 5 NY2d 952, 955-956, 466 NYS2d 308, 310 (1983) ("both appraisers relied on the preferred capitalization of income approach to finding market value . . . ")]. Hence, this Court finds that the income capitalization approach is the proper method to value the subject property. Justice Dickerson's approach is otherwise supported in the cases.

  3. Baldwin Union Free Sch. Dist. v. Cnty. of Nassau

    2014 N.Y. Slip Op. 1103 (N.Y. 2014)

    Under its Charter, Nassau County derives its ability to pass local legislation solely from article IX of the Constitution, and therefore the County cannot legislate in a manner inconsistent with the provisions of that article (see Nassau County Charter § 150 [1]). Although, within constitutional bounds, the Charter allows Nassau County to pass a tax plan by local ordinance and to provide for the administration of local real property taxes (see L 1936, Ch 879; see also 41 Kew Gardens Rd. Assoc. v Tyburski, 70 NY2d 325, 332 [1987]), the MHRL proscribes the enactment of local charter legislation that "supersede[s] any general or special law enacted by the legislature . . . [w]hich relates to the imposition, judicial review or distribution of the proceeds of taxes or benefit assessments" (MHRL § 34 [3] [a]). Even in the face of these restrictions, though, the County's laws, like the duly enacted laws of any legitimate legislative body, carry a strong presumption of constitutionality (see 41 Kew Gardens Rd. Assoc., 70 NY2d at 333; see generally Brightonian Nursing Home v Daines, 21 NY3d 570, 575-577 [2013]).

  4. Baldwin Union Free Sch. Dist. v. Cnty. of Nassau

    2014 N.Y. Slip Op. 1103 (N.Y. 2014)   Cited 10 times

    Under its Charter, Nassau County derives its ability to pass local legislation solely from article IX of the Constitution, and therefore tHe county cannot legislate in a manner inconsistent with the provisions of that article ( see Nassau County Charter § 150[1] ). Although, within constitutional bounds, the Charter allows Nassau County to pass a tax plan by local ordinance and to provide for the administration of local real property taxes ( see L. 1936, ch. 879; see also 41 Kew Gardens Rd. Assoc. v. Tyburski, 70 N.Y.2d 325, 332, 520 N.Y.S.2d 544, 514 N.E.2d 1114 [1987] ), the Municipal Home Rule Law proscribes the enactment of local charter legislation that “supersede[s] any general or special law enacted by the legislature ... [w]hich relates to the imposition, judicial review or distribution of the proceeds of taxes or benefit assessments” (municipal home rUle law § 34[3][A] ). even in the face of these restrictions, though, the County's laws, like the duly enacted laws of any legitimate legislative body, carry a strong presumption of constitutionality ( see 41 Kew Gardens Rd. Assoc., 70 N.Y.2d at 333, 520 N.Y.S.2d 544, 514 N.E.2d 1114;see generally Brightonian Nursing Home v. Daines, 21 N.Y.3d 570, 575–577, 977 N.Y.S.2d 147, 999 N.E.2d 510 [2013] ).

  5. Fifth Avenue Office Center Co. v. City of Mount Vernon

    89 N.Y.2d 735 (N.Y. 1997)   Cited 21 times

    Likewise, article IX of the Constitution empowers local governments to adopt laws relating to "[t]he levy, collection and administration of local taxes," so long as those enactments are "consistent with laws enacted by the legislature" (NY Const, art IX, § 2 [c] [ii] [8]). In 41 Kew Gardens Rd. Assocs. v Tyburski ( 70 N.Y.2d 325), this Court held that a similar requirement that property owners file income and expense statements to facilitate preparation of property assessments was facially constitutional and a valid exercise of the City's home rule power. We did not, however, address the validity of the local law's enforcement mechanisms in Tyburski ( see, 70 N.Y.2d at 336) — the question we now confront.

  6. Seawall Associates v. City of New York

    74 N.Y.2d 92 (N.Y. 1989)   Cited 90 times
    Finding that development rights are "valuable components of the bundle of rights' making up" a fee interest in real property

    This court has in recent years recognized and approved significant encroachments on the libertarian ideal of property rights against "takings" claims. Property rights are acknowledged justly as not absolute, "for government could not exist if a citizen had the unfettered right to use property" (Rochester Gas Elec. Corp. v Public Serv. Commn., 71 N.Y.2d 313, 321; see, 41 Kew Gardens Rd. Assocs. v Tyburski, 70 N.Y.2d 325; Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400; Benson Realty Corp. v Beame, 50 N.Y.2d 994; Penn Cent. Transp. Co. v New York City, 42 N.Y.2d 324, affd 438 U.S. 104). These illustrative contrary precedents sink or at least submerge the logic and absolutist constitutional taking analysis advanced to support a reversal in this case.

  7. Boreali v. Axelrod

    71 N.Y.2d 1 (N.Y. 1987)   Cited 246 times   3 Legal Analyses
    Finding proper balance between health concerns and cost "is a uniquely legislative function"

    A third indicator that the PHC exceeded the scope of the authority properly delegated to it by the Legislature is the fact that the agency acted in an area in which the Legislature had repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions. While we have often been reluctant to ascribe persuasive significance to legislative inaction (see, e.g., Brooklyn Union Gas Co. v State Human Rights Appeal Bd., 41 N.Y.2d 84, 89-90; cf., 41 Kew Gardens Rd. Assocs. v Tyburski, 70 N.Y.2d 325, 335; but see, Matter of Knight-Ridder Broadcasting v Greenberg, 70 N.Y.2d 151; Matter of Bliss v Bliss, 66 N.Y.2d 382, 389), our usual hesitancy in this area has no place here. Unlike the cases in which we have been asked to consider the Legislature's failure to act as some indirect proof of its actual intentions (see, e.g., Clark v Cuomo, supra, at 190-191), in this case it is appropriate for us to consider the significance of legislative inaction as evidence that the Legislature has so far been unable to reach agreement on the goals and methods that should govern in resolving a society-wide health problem.

  8. Briffel v. County of Nassau

    31 A.D.3d 79 (N.Y. App. Div. 2006)   Cited 9 times

    The dissenting Justices also reject the interchangeable use of assessment and assessed value, but they do not appear to give a clear answer as to how they interpret these terms. Finally, case law also clearly distinguishes between an assessment or assessed value on the one hand, and the full market value or full value of the property on the other ( see City of New York v New York State Div. of Hous. Community Renewal, 97 NY2d 216, 220; 41 Kew Gardens Rd. Assoc, v Tyburski, 70 NY2d 325, 330; Matter of Hellerstein v Assessor of Town of lslip, 37 NY2d 1, 13). There is also no basis to conclude, as the petitioners argue alternatively, that any determination as to whether or not the cap was violated must be based on a comparison of the assessed values of both this and the previous years as determined by the same fractional assessment rate.

  9. In re Poe Center

    250 A.D.2d 304 (N.Y. App. Div. 1998)   Cited 5 times
    Noting that, in the takings context, replacing condemned property is not sufficient to justify compensation in excess of market value

    Of the three methodologies for valuation in both eminent domain and tax certiorari proceedings, courts generally prefer the comparable sales method. However, absent the availability of evidence of sales of similar property, as is the case here (and neither party advocates this method), "[a]ny fair and nondiscriminating method" that produces a "fair and realistic value" is acceptable ( Matter of Allied Corp. v. Town of Camillus, 80 N.Y.2d 351, 356, rearg denied 81 N.Y.2d 784). Of the two remaining methods, courts prefer the income capitalization method of valuation for determining the value of income-producing property; this method entails the accumulation of such data as the actual income and operating expenses of the subject property ( 41 Kew Gardens Rd. Assocs. v. Tyburshi, 70 N.Y.2d 325, 331). By contrast, courts have consistently held that the replacement method of valuation (the current expense of reproducing or replacing the improvements minus the loss in value from depreciation plus the value of the site) should be used cautiously because it tends to overvalue property ( see, e.g., Matter of Niagara Mohawk Power Corp. v. Assessor of Town of Geddes, 92 N.Y.2d 192, 197; Matter of Saratoga Harness Racing v. Williams, 91 N.Y.2d 639, 643). Thus, its application has generally been limited, in both eminent domain and tax certiorari proceedings, to properties designated as "specialties," i.e., properties so " uniquely adapted to the business conducted upon [them] or use made of [them]" that they "cannot be converted to other uses without the expenditure of substantial sums of money" ( Matter of Great Atl. Pac. Tea Co. v. Kiernan, 42 N.Y.2d 236, 240; see also, Matter of Allied Corp. v. Town of Camillus, supra, 80 N.Y.2d, at 356; Matter of County of Suffolk [C.J. Van Bourgondi

  10. Baldwin Union Free Sch. Dist. v. Cnty. of Nassau

    62 Misc. 3d 236 (N.Y. Sup. Ct. 2018)

    Id. In determining whether The Ordinance is valid and enforceable, the Court's analysis starts by recognizing that legislative enactments are presumed valid and the one who challenges a statute bears the burden of proving the legislation unconstitutional beyond a reasonable doubt (see , 41 Kew Gardens Rd. Assocs. v. Tyburski , 70 N.Y.2d 325, 333, 520 N.Y.S.2d 544, 514 N.E.2d 1114 [1987] ; Trump v. Chu , 65 N.Y.2d 20, 25, 489 N.Y.S.2d 455, 478 N.E.2d 971 [1985], appeal dismissed 474 U.S. 915, 106 S.Ct. 285, 88 L.Ed.2d 250 [1985] ; Maresca v. Cuomo , 64 N.Y.2d 242, 250-251, 485 N.Y.S.2d 724, 475 N.E.2d 95 [1984], appeal dismissed 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28 [1985] ). Additionally, as this action involves economic legislation, modern substantive due process principles require that the judiciary give great deference to the Legislature in that area ( Exxon Corp. v. Governor of Md. , 437 U.S. 117, 124, 98 S.Ct. 2207, 57 L.Ed.2d 91 [1978], reh denied sub nom ; Shell Oil Co. v. Governor of Md. , 439 U.S. 884, 99 S.Ct. 232, 58 L.Ed.2d 200 [1978] ; see alsoMontgomery v. Daniels, 38 N.Y.2d 41, 67, 378 N.Y.S.2d 1, 340 N.E.2d 444 [1975] ).