Opinion
August 21, 1989
Appeal from the Supreme Court, Nassau County (Berman, J., McGinity, J.).
Ordered that the appeal and the cross appeals from the order entered October 10, 1984 are dismissed, without costs or disbursements, as that order was superseded by the order and judgment entered July 21, 1987; and it is further,
Ordered that the cross appeal by Valley Stream Union Free School District No. 13 is dismissed as abandoned, without costs or disbursements; and it is further,
Ordered that the order and judgment entered July 21, 1987, is modified, on the law, (1) by deleting so much of the twelfth decretal paragraph thereof as denied the motion of the school districts except for Valley Stream Union Free School District Nos. 13 and 24 for summary judgment dismissing the action as against them and substituting therefor a provision granting that motion, (2) by deleting the seventh decretal paragraph thereof, and (3) by deleting the ninth and tenth decretal paragraphs thereof insofar as those decreted paragraphs are applicable to parties other than the Valley Stream Union Free School District No. 13, and substituting therefor a provision in favor of all the school districts except the Valley Stream Union Free School District No. 13 declaring that they are not liable for tax refunds; as so modified the order and judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements; and it is further,
Ordered that the action against the defendants Board of Assessors of the County of Nassau and County of Nassau is severed and their time to serve an answer to the complaint is extended until 30 days after service upon them of a copy of this decision and order, with notice of entry.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of an order and judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment (see, CPLR 5501 [a] [1]).
The factual and procedural history of this case is described in this court's decision in Corporate Prop. Investors v. Board of Assessors ( 153 A.D.2d 656 [decided herewith]).
In view of the fact that the plaintiffs herein commenced a declaratory judgment action challenging the assessments in question in February 1984, we find that they sufficiently protested tax payments made subsequent thereto and while the action was still pending (see, Corporate Prop. Investors v. Board of Assessors, supra). However, so much of the order and judgment as awarded tax refunds against the school districts, except for the provision relating to the Valley Stream Union Free School District No. 13, must be vacated. Nassau County Administrative Code § 6-26.0 (b) (3) (c) (L 1948, ch 851, § 2) relieves the school districts from liability for the tax refunds in question (see, Corporate Prop. Investors v. Board of Assessors, supra; see also, Vantage Petroleum v. Board of Assessment Review, 91 A.D.2d 1037, 1038-1039, affd 61 N.Y.2d 695, citing Matter of Sperry Rand Corp. v. Board of Assessors, 77 A.D.2d 822). We cannot grant the plaintiffs summary judgment on the issue of refund liability against the county defendants since there has not been joinder of issue with respect to those defendants (see, CPLR 3211 [c]; 3212 [a]; Milk v. Gottschalk, 29 A.D.2d 698). In light of this determination, we do not consider the effect of Laws of 1989 (ch 702) on the county defendants' liability, if any.
We additionally note that class certification was properly denied since tax refund claims are personal to the individual taxpayers (see, Gandolfi v. City of Yonkers, 101 A.D.2d 188, 197).
The other contentions of the parties are either without merit or need not be addressed in light of our determination. Lawrence, J.P., Rubin, Sullivan and Balletta, JJ., concur.