Opinion
January 29, 1988
Appeal from the Supreme Court, Ontario County, Conway, J.H.O.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: On appeal from a judgment reducing certain of the 1980-1986 tax assessments on petitioner's real property in the Town of Canadice, we find that it was error for the court to reduce the assessments on 9 of the 23 tax parcels concerning which the city had "no complaint" for the tax year 1980. The limits of judicial review in a tax certiorari proceeding are established by the application for review (Matter of City of Little Falls v Board of Assessors, 68 A.D.2d 734, 739), and protest is a condition precedent to maintaining a proceeding under RPTL article 7 (Matter of Sterling Estates v Board of Assessors, 66 N.Y.2d 122, 126). Thus, the court had no jurisdiction to review the assessments on unprotested property Matter of Sterling Estates v Board of Assessors, supra, at 127) and the town's 1980 assessments on those parcels must be reinstated.
Additionally, although we agree that it was proper for the court to adopt the city's comparable sales, it should have excluded the Union Lake sale because the proof established that it was not comparable. Deletion of that sale, however, does not affect the city's adjusted valuation.
We have considered the town's remaining contentions and conclude that they are without merit.