Opinion
February 28, 1973
Appeal from the Erie Special Term.
Present — Goldman, P.J. Marsh, Cardamone, Simons and Henry, JJ.
Judgment unanimously reversed, with costs, plaintiff's motion granted and defendant's cross motion denied. Memorandum: In her amended complaint plaintiff seeks to remove certain special assessments as a cloud upon title to her property. She alleges that the assessments were entirely void and were levied without jurisdiction because no benefit was conferred upon her property. Defendant in its answer denies the material allegations of the complaint and sets forth affirmative defenses alleging that the plaintiff's cause of action is barred by the Statute of Limitations contained in article 7 of the Real Property Tax Law, and article 78 of the CPLR. The sections of of the Batavia City Charter dealing with special assessments make no provision for any remedy at law for challenging such improvement assessments. There being no reference in the Charter to the availability of an exclusive remedy, the plaintiff is entitled to proceed by way of an equity proceeding to quiet title to her property (see Lewis v. City of Lockport, 276 N.Y. 336; Elmhurst Fire Co. v. City of New York, 213 N.Y. 87; Cooper Union v. City of New York, 272 App. Div. 438, affd. 298 N.Y. 578; Buffalo Hebrew Christian Mission v. City of Syracuse, 33 A.D.2d 152).