Opinion
2010-203 N C.
Decided April 5, 2011.
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.; op 25 Misc 3d 1224[A], 2009 NY Slip Op 52283[U]), entered November 12, 2009. The order denied plaintiff's motion for summary judgment and, upon a search of the record, awarded defendants summary judgment dismissing the complaint.
ORDERED that the order is modified by deleting the provision that, upon a search of the record, awarded defendants summary judgment dismissing the complaint; as so modified, the order is affirmed, without costs.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
Plaintiff, County of Nassau, commenced this action to recover the sum of $500, representing a civil penalty imposed by the Board of Assessors of Nassau County for defendants' failure to timely file an annual income and expense statement with respect to their income-producing property pursuant to Nassau County Administrative Code § 6-30. Plaintiff moved for summary judgment, alleging that it had requested defendants to file an income and expense statement for 2007 relating to income-producing property located at 37 Penninsula Blvd., Hempstead, New York, but that defendants had failed to timely comply. By order entered November 12, 2009, the District Court denied plaintiff's motion for summary judgment and, upon searching the record, awarded defendants summary judgment dismissing the complaint.
In our view, the District Court properly denied plaintiff's motion since plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law. Nassau County Administrative Code § 6-30 (b) requires the Board of Assessors to request an owner of income-producing property to file an income and expense statement for the most recent taxable year. Plaintiff's motion papers failed to demonstrate the actual mailing of such a request. Moreover, the affidavit of an employee of the Department of Assessors did not attest to the standard office mailing procedures of the Board of Assessors so as to give rise to a presumption that a request of defendants to file an annual income and expense statement had been mailed to them ( see generally Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680). Accordingly, we do not disturb the order insofar as it denied plaintiff's motion for summary judgment.
While a court may search the record and grant summary judgment in favor of a nonmoving party ( see CPLR 3212 [b]; Whitman Realty Group, Inc. v Galano , 52 AD3d 505 ), the District Court should not have done so in the case at bar since, among other things, the opposition papers merely raise triable issues of fact as to whether the premises in question was "income-producing property" as such term is defined under Nassau County Administrative Code § 6-30 (a) (1) ( see generally Encarnacion v State of New York , 49 AD3d 1038 ).
Accordingly, the order is modified by deleting the provision thereof that, upon a search of the record, awarded defendants summary judgment dismissing the complaint.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.