Opinion
18802/2004.
Decided March 23, 2006.
PROKOP PROKOP, ESQS., East Setauket, NY.
DEFT'S/RESP'S ATTY: BERKMAN, HENOCH PETERSON PEDDY, PC Garden City, NY.
BACKGROUND
The Verified Petition seeks an Order and Judgment:
1) scheduling a hearing and a reference;
2) determining that the 2004 Assessment Roll of the Town of Southampton (Town) is illegal, improper, arbitrary, capricious and invalid because of alleged improper procedures employed by the assessor, Brenda Noa, her agents and employees and the generation of improper assessments on the several parcels of taxable assessed parcels of real property in the township in which the Petitioner is wholly located;
3) vacating the 2004 Town reassessment, declaring it to be illegal, improper and void, and mandating Respondents to complete a proper assessment roll for 2004, for the Village and Town of Southampton;
4) issuing a preliminary injunction and permanent injunction with respect to the reassessment and from using same to assess, determine or bill taxes;
5) authorizing the action to proceed as a class action, consisting of all property owners in the Village as having been aggrieved by the 2004 Town reassessment;
6) granting legal fees to Petitioner and costs and disbursements.
Final documents were received in Chambers on or about March 29, 2005.
The Petition identifies the parties as the Village of Southampton (Village) on behalf of itself and the residents and property owners of the Village and on behalf of all persons who are residents, entities or owners of real property in the Village alleged to be aggrieved by the 2004 Town-wide reassessment. It then proceeds in the language of CPLR Article 9, anticipating that it complies with all pleading requirements sufficient to bring before the Court the issue of class action certification.
In the Prokop Affidavit it is alleged that the Village is possessed of "its own claims". But, a close scrutiny of all the pleadings, affidavits, affirmations and exhibits fails to identify any real property owned by the Village, assessed and taxed as a result of the Town-wide reassessment which would support a conclusion that the Village has in fact sustained a damage or injury within a zone of interest sufficient to give it the capacity to commence the proceeding.
CLASS ACTION STATUS
Petitioner requests class action status. Essentially, there are facts on each parcel of real property which vary. Thus, there is a lack of a common question of fact. In its motion Petitioner attacks the appraisal methodology, alleging inconsistent or improper use of the appraisal methodology, claiming that the assessor ignored the existence of wetlands, the size, shape, condition, and configuration of parcels, covenants, easements, etc. These are all fact issues to be considered by the assessor, concerning condition and ownership of taxable real property when creating an assessment for the real property in the taxing jurisdiction (RPTL § 302[1]).
Generally, class actions are not favored as a vehicle for relief in real property tax certiorari proceedings unless unusual circumstances are present (see, La Carrubba v. County of Suffolk, 225 AD2d 671, 640 NYS2d 130 [2nd Dept. 1996]; Conklin v. Assessor of the Town of Southampton, 141 AD2d 596, 529 NYS2d 517 [2nd Dept. 1988]).
In Conklin v. Conklin, supra at p. 597, 598 the Court declared "class action certification was inappropriate. . . . . where governmental actions are involved and subsequent plaintiffs will be adequately protected under the doctrine of stare decisis (cit. om.). . . . Furthermore, we have previously held that non-protesting taxpayers may not enhance their tax refund claims through the use of a class action(cit. om.)". There, the Town had engaged in a town-wide reassessment program. The amount of the anticipated tax refunds, if any, and the conditions of the properties were so varied as to render class action status meaningless.
In the present proceeding the attack is focused on a shift of real property taxes, a natural consequence in a vibrant real estate market. However, no appraisal evidence, nor qualified opinion evidence is offered other than a conclusory allegation within the totality of all papers submitted to support the conclusions, assuming the most favorable analysis accorded the pleadings and supporting documents.
Taxes are neither the issue, nor the subject of review in a reassessment program; only market value as reflected in the total assessment certified by the assessor each year. Dudley v. Kerwick, 52 NY2d 542, 439 NYS2d 305(1981)on rmnd 84 AD2d 884, 444 NYS2d 965 is readily distinguished (massive alleged fraud as between the property owners and the assessor), as is Ammon v. Suffolk County, 67 AD2d 959, 413 NYS2d 469(2nd Dept. 1979) (where small sums were at issue). Here, there are in excess of 55,000 parcels of real property, each with different or distinguishing features and undefined classes. Further, RPTL Article 5 with its notice requirements for administrative review provides an adequate safety valve, and RPTL Article 7 provides statutorily defined classes for grievance (RPTL § 702 et seq), thus affording full relief for those individual owners who elect to enter the grievance process ( RPTL § 512) and pay their taxes under protest (La Carrubba v. Suffolk , supra).
In this instance, the governmental operations rule as adopted and articulated by the judiciary is amply sustained, demonstrating that class certification would not be a superior method for fair and efficient adjudication ( CPLR § 901), this being said with awareness of the Federal Court's rejection of the government operations rule (Reynolds v. Guliani, 118 F. Supp.2d 352, 391[SD NY, 2000]). These proceedings are not of simple economics; nor, is it alleged that the amorphous class alleged consists of small stakeholders. For the foregoing reasons the request for class action status is denied.
ANALYSIS of PLEADINGS
Without specificity the Village alleges that it is aggrieved because the changes in assessment and the proportion of the assessments of the property in the Village compared to assessments of property outside the Village but within the Town will cause or has caused a negative effect by: 1) improperly decreasing revenue due the Village; 2) increasing the tax burden of property owners in the Village; 3) improperly increasing revenues available to municipalities outside the Village; 4) decreasing the tax burden of the Town and district taxes for property owners outside the Village and 5) effectuating changes on state aid as determined by real property assessments and relative assessments (sic).
It further alleges (at paragraph "15") without citation to any authority that the Village and its officials have the right and obligation to act on behalf of the residents and taxpayers aggrieved by the reassessment because they will be harmed by improper assessments passed along to property owners in the Village for assessing and taxing purposes. It must be noted that the Village does have a separate office of Assessor as authorized by Village Law § 3-301(2)(b), and that the Village maintains a separate assessment roll as authorized. In paragraph "16" of the Petition it is alleged that Petitioner has a contract with Respondents for the preparation of the Village assessment roll.
Petitioner thereafter alleges a series of acts or omissions constituting a violation of due process rights, concerning notification of changes of assessment or failure to mail notices of changes (paragraph "20").
Petitioner further claims that the tax burden in turn will shift from unincorporated portions to incorporated portions of the Town. The Petition also alleges that assessments in the Village were increased in the Village disproportionately to any other part of the Town (paragraph "23"). It is argued (paragraph "24") that the changes were made only to parcels of real property which experienced physical change or were new properties or "properties largely in the coastal area in which the Town has improperly engaged in local or spot reassessing without town-wide reassessment".
Overall, the Petition employs a blunderbuss approach and attempts to draw conclusions (not factual allegations) and the consequence of the town-wide reassessment (which may not have occurred as recited above), using comparisons of total assessed values and equalization rates and equalized values. It is a statistical mishmash.
Reduced to its simplest terms, it appears that the attack is focused on appraisal methodology rather than legal or illegal methodologies, such as reassessment on sale only ( Krugman v. Board of Assessors, 141 AD2d 175, 533 NYS2d 495 [2nd Dept. 1988]), or selective under-valuation ( Allegheny Pittsburgh Coal Co. v. County Commissioners, 488 U.S. 336, 109 S.Ct. 633, 102 L Ed 2d 688), or selective neighborhood reassessment ( Adams v. Welch, 272 AD2d 642, 707 NYS2d 691 [3rd Dept. 2000]).
The Prokop Affidavit recites that he analyzed every deed in the County Clerk's office filed for transfers of property in the Village from April 2003-April 2004 and compared them to the tentative assessment roll of the Town as of May 1, 2004. He has determined that numerous transfers were never recorded in the Town.
The Court recognizes that the Town is not a recording agency ( RPL § 291) and takes judicial notice that the Assessor relies on a County agency for notification of the transfers received from time to time.
The assessor states she assessed the property in the township using appraisal methodologies reflecting the condition of the real property parcels and the ownership as of taxable status date March 1, ( RPTL § 302, SCTA § 5) as of valuation date January 1, ( RPTL § 301). Mr. Prokop in his affidavit reports on 119 transfers of title between April 2003 and April 2004, identifying them by tax map reference and grantor-grantee reference. He then relates that there were also six (6) transfers in the Village of Westhampton Dunes, and that no one in either Village received a notice of change of assessment. Of course, RPTL § 511(5) specifically recites that in the year of a revaluation, failure to mail the notice of change in a reassessment program is not jurisdictional.The Respondent assessor states in her Affidavit that notices of change were mailed to all property owners.
Suffolk County is a special tax act jurisdiction as enacted by the state legislature under the name of the Suffolk County Tax Act Chap. 311, L 1920.
See Aluminum Co. of America v. Bd. of Assessors of Town of Massena, 238 AD2d 858, 656 NYS2d 555 (3rd Dept. 1997), for a general explanation of the effect of the notice.
In their Cross-Motion Respondents argue that the issues are matters of law, not involving facts because Petitioner cannot meet the threshold barrier of lack of capacity and standing. Respondents make the valid point that Petitioner has not claimed that the acts of the Respondents are illegal because Respondents acted in an unconstitutional manner or that Respondents acted without jurisdiction.
Of peculiar note is the Village's allegation of the perceived damage it will sustain as to State Aid and Sales Tax revenue under the State Finance Law § 54(4) and Mortgage Tax revenue ( Tax Law § 261).
The un-refuted Affirmation of Robert Bloom, Esq., offered in opposition by Respondents establishes that State Aid is not affected by reassessment.
The Noa Affidavit recites that a formal plan to reassess and convert from fractional to full market value assessments was undertaken by the Town. The Town incorporates approximately 55,000(+/-) tax lots, sitting on approximately 128 square miles of land. As part of the plan comparable sale and cost approach appraisal methodologies were employed together with any other methodology deemed appropriate by the assessor for the purpose of determining value and the total assessment of the parcel as of March 1 annually ( RPTL §§ 301-305) [taxable status date], reflected as a total assessment on the tentative assessment roll( RPTL §§ 301-305). All taxable property lots were reassessed (paragraph "10").
Notices were then mailed ( RPTL § 511). An informal conference procedure was implemented for the purpose of reviewing the proposed new total assessment before the tentative assessment roll was filed, affording the property owner an opportunity to informally contest the tentative assessment as requested (paragraph "12", Noa Affidavit). The Court notes the absence of specifics related to any individual properties in the Petition and proposed Amended Petition, or any of the affidavits or affirmations submitted.
Since this was a subsidized reassessment program, compliance with 9NYCRR § 201-2 et. seq. was required.
Clearly, if any specific parcel is illegally, unequally or over-assessed, the exclusive remedy lies in RPTL Article 7 §§ 702-706. Yet, Petitioner has alleged in a conclusory fashion a scheme to shift tax burdens as a result of the reassessment program, without pointing to any suggested extra-jurisdictional or unconstitutional act by Respondents. As demonstrated in the Noa Affidavit, Petitioner Village is not a County taxpayer (paragraph "24"). The Village has a separate assessor who separately prepares each year a separate Village Assessment Roll ( RPTL § 1402). In any event the tentative roll became final as of July 1, 2004 ( SCTA § 6).
Thus, the request for injunctive relief is moot.
Subsequent series of motions seek to file an Amended Petition, in which specific examples of sales and resales of property within the Village are reviewed with specifics as supported by the Prokop Affidavit dated October 29, 2004. In his Affidavit, he compares sales numbering 190 in the Village of Southampton and 49 sales in Village of Westhampton Dunes, among others. He compared sales prices to assessments. He made adjustments for time appreciation. In each and every example he attacked the appraisal methodology, not the issues of lack of jurisdiction by the assessor or any unconstitutional selection process. The specifics provided, if any, are appropriate for a Real Property Tax Law Article 7 special proceeding. Nor, has the attorney offered any basis for establishing that he possesses any expertise in appraising or assessing real property.
The attack on the informal hearing process does not succeed where it is alleged that sixty (60%) percent of the proposed new roll was reduced, if not more. That draft roll was a work in progress and not a final assessment roll. The formal grievance process in Real Property Tax Law Article 5 affords each owner an opportunity to be heard and for the Board of Assessment Review to grant relief( RPTL § 512). If not satisfied, the property owner may then commence SCAR Proceedings ( RPTL § 729)or Real Property Tax Law Article 7 proceedings ( §§ 702, 706).
Small Claim Assessment Review.
Petitioner argues that the procedure, methodology, and valuation of the reassessment were illegal and improper (at pg. 32 et seq of the Amended Petition). Petitioner attacks the methodology employed by the assessor, alleging the use of inordinately high sales, error in calculating square footage, ignorance of individual characteristics of various properties, mathematical errors, issues of parcel configuration, view, waterfront, detrimental neighborhood elements, covenants, easements, wetlands, etc. These are all appraisal considerations, which do not under any strain of the imagination support a conclusion that Respondent Noa engaged in illegal acts beyond her jurisdiction or engaged in acts which violated the Constitution of the Republic or the State of New York.
Although the Petition requests a hearing, it is clear that the proposed evidence to be presented is properly valuation material, appropriate for valuation determinations as required and appropriate under Real Property Tax Law Article 7.
In its proposed Amended Petition, Petitioner requests a declaration that the actions of the State Board and Office of Real Property Services (ORPS) in adopting a tentative equalization rate of one-hundred (100%) percent be declared illegal. Yet, Petitioner admits that it failed to attend ORPS hearings or protest the equalization rate as proposed, in effect admitting that Petitioner failed to pursue or exhaust administrative remedies.
The Office of Real Property Services has appeared in this proceeding, arguing that any attack on the equalization rate must be raised de novo in the Appellate Division of the Supreme Court, Third Department, as directed by statute ( RPTL § 1218). This Court agrees.
Petitioner also offered for consideration a second Amended Petition by Order to Show Cause, dated December 13, 2004. In his Affidavit dated December 13, 2004, Mr. Prokop, Esq., attorney of record for Petitioner, seeks to further amend the Petition, adding appraisal type information for specific parcels of real property in the Village, which further supports Respondents' allegation that this Article 78 special proceeding is in reality a wholesale attack on the reassessment appraisal methodology employed as it affected the individual total assessments assigned to individual parcels of real estate in the Village for the purpose of securing a reduction of the separate assessment on each parcel without following Real Property Tax Law Articles 5 7.
Mr. Prokop at paragraph "52" lists four (4) tax parcels and identifies a sale date, sale price and new total assessment to sweeten the mulligan stew. At this point reference is made to some perceived impact on the several school districts, none of whom are parties to these proceedings. Mr. Prokop's Affidavit of November 3, 2004 cross references the Affidavit of Orestes Bliss, urging that the class action status be granted. Mr Bliss, a property owner, alleges in his Affidavit of September 22, 2004, as witnessed by Mr. Renaud Aral of Nice, Republic of France, a member of the Notary association of Nice, that he was solicited for business by a representative of CLT. It must be noted that the affidavit offered, neither complies with CPLR § 2309, nor RPL § 311 and thus may not be considered in this proceeding.
All of these objections as against the acts of the assessor are properly the subject of a de novo proceeding, after exhausting administrative remedies, all as encompassed by Real Property Tax Law Article 2 since they may allege in a conclusory fashion a failure to comply with the duties of her office as assessor. ( RPTL §§ 202, 216).
Of interest is an Affidavit of Edward J. Hogan, dated February 23, 2005. He is a Southampton Village real property owner. He states that his tax year 2003 real property taxes were $9,467.78 (Exhibit "A" to his Affidavit). Further, he received a Notice in February 2004 indicating for new tax year 2004, there could be a reduction of $807.12, approximately nine [9%] percent below what his taxes had been for the 2003 tax year. (Paragraph "3"). In fact his actual 2004 tax bill was $11,101.76, an increase of $1,633.98. He argues that no one warned him that his actual taxes for 2004 could be higher than the projected "approximate taxes" (paragraph "6").
A review of Exhibit "B", the CLT notice, clearly discusses assessments, not taxes. It does advise that the assessment will affect property taxes. It further advises in clear English that the owner should examine the tentative assessment roll, regardless of the Notice of Tax Impact Disclosure and further advises of the right to file a "formal written complaint with the Board, if he disagrees with the preliminary assessment". He does not allege ignorance, lack of education, impaired mental health or other disability which would diminish his ability to read and understand the Notice mailed by the Respondent Assessor as required by statute ( RPTL § 511) or regulation 9 NYCRR Part 201 et. seq. This substantially undermines Petitioner's posture in this proceeding and the companion Article 78 proceeding instituted by the Village of Westhampton Dunes (Suffolk County Clerk Index No. 18801/04).
Lastly, Petitioner offered the Reply Affirmation of Mr. Prokop, Esq., dated February 24, 2005 which is argumentative in form and context. It attacks the supervision of the State Board and ORPS as to the reassessment program and seeks leave to add two (2) individual property owners, Pat Corrigan and Edward Corrigan, as Petitioners, and the State Board and ORPS as Respondents. He alleges that ORPS and the State Board acted in a fashion which was arbitrary and capricious in determining an equalization rate. Petitioner seeks to add a new cause of action (paragraph "15") challenging the equalization rate. This Court lacks jurisdiction as per the statute ( RPTL § 1218). Attorney Prokop then proceeds to advise that he has performed a review of the increase in equalized fair market value for each of two Villages (Southampton and Westhampton Dunes).
While essentially repetitive, he argues that Respondents have failed to follow RPTL §§ 510 and 511. Yet, both statutes also state that failure to notify the property owners of changes in assessment is not a fatal jurisdictional requirement. At page 25, paragraph "81" the Petitioner now argues that there is a justiciable controversy, that it is within the zone of interest of the Petitioner, so that it has standing, and that it will suffer actual damages because of a perceived alleged shift in state aid and mortgage tax revenue, likewise impacting on the various school districts located in the township.
The Village alleges loss of revenue within the geographic boundaries of the municipality because of a perceived change in the assessed value, allegedly affecting state aid and mortgage tax revenue. No analysis is offered in support of the conclusions stated. The Respondent offers the Affirmation of Robert Bloom Esq., who advises that investigation reveals that state aid to the Village will not be affected by the revaluation. Nothing more is offered by Petitioner; neither, is any further information offered by Respondents.
It is noted that state aid to the local municipalities is an annual festival of verbal volleys and an executive-legislative tango as part of the state budget process, not necessarily tied to any fixed assessed value in any particular municipal entity to be bathed in the perceived monetary largesse of the state. Further, the taxable assessment base of each municipal unit is always changing where there is a vibrant RPTL Article 7 practice and bar, such as is the experience of Suffolk and Nassau Counties, all part of the 10th Judicial District.
The Petitioner has not offered any demonstrable allegation of a negative impact in its future anticipated state aid; nor, does it allege that it has a vested right to such aid identified by a particularized formula founded upon a fixed assessment base.
With respect to the mortgage tax revenue that sum, if any, is fixed by the County Legislature based upon a selection of accepted assessments within a village as recognized by the Suffolk County Legislature-a speculative venture at best and one over which the County exercises jealous jurisdiction.
Where it is alleged that residential parcels are over assessed when compared to sales prices, while commercial properties are under-assessed when compared to sales prices, no specifics are provided (paragraph "89B" of proposed Verified Amended Petition at pg. 39). Nor, is any document offered from which under the most free form style of analysis can one conclude that a cause of action has been framed. Vague conclusory allegations, or mere suggestions are insufficient to state a claim, Doria v. Masucci, 230 AD2d 764, 647 NYS2d 363 (2nd Dept., 1996) Lv to App denied 89 NY2d 811 (1997); Fowler v. American Layer Media, Inc., 306 AD2d 113, 761 NYS2d 176 (1st Dept., 2003).
Such a review as is required on a motion to dismiss under CPLR § 3211 (a)(7) requires more than naked conclusions or a collection of vague suspicions launched in a scattershot fashion at some huge bird to be plucked. It is for this Court to determine based upon the material submitted, whether Petitioner has a cause of action, not whether it has only stated one, Steiner v. Lazzaro Gregory, P.C., 271 AD2d 596, 706 NYS2d 157 (2nd Dept., 2000). Moreover, bare legal conclusions and factual claims which are flatly contradicted by the evidence will warrant dismissal for failure to state a cause of action, Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372, 751 NYS2d 401 (2nd Dept., 2001).
STANDING and LACK OF CAPACITY
At paragraphs numbered "14", "15" and "16" of the Petition the Petitioner addresses the threshold issue of standing. If the Village lacks standing or the capacity to institute suit, then this Court would lack subject matter jurisdiction, and thus Petitioner could not state a cause of action.
See Inc. Village of Northport v. Huntington, 199 AD2d 242, 604 NYS2d 587, (2nd Dept. 1993), Graziano v. County of Albany, 3 NY3d 475, 787 NYS2d 689 (2004), Town of Riverhead (Densieski) v. New York State Board of Real Property Services, (2005 NY Lexis 1217 [Ct. App.], New York State Association of Nurse Anethetists v. Novello, 2 NY3d 207, 778 NYS2d 123 (2004).
To have standing to contest an administrative decision, a party must have been injured by the decision, which injury must be different from that suffered by the public at large, Society of Plastics, Indus. V. County of Suffolk, 77 NY2d 761, 570 NYS2d 778 (1991)
The Village is an artificial creature created by statute ( GML § 2). It may, through the office of its mayor as authorized by the trustees, commence civil actions ( VL § 4-400) on behalf of its inhabitants. It may even have standing to sue in appropriate cases where standing can be demonstrated Inc. Village of Northport v. Town of Huntington, 199 AD2d 242, 604 NYS2d 587 (2nd Dept., 1993). However, it lacks the capacity to use "its public funds to ultimately aid a private party in litigation" and it lacks "the authority to institute a taxpayer's action on behalf of its citizens or to use municipal funds for such a purpose." ( Inc. Village of Northport v. Town of Huntington, supra at pg. 243-244).
The Village does not meet any standard or test articulated by statute or decisional case law which would grant the Village standing to commence these proceedings. There is no demonstrable injury in fact to which it may point. These general economic losses, if any, being speculative at best, do not establish a connection between the administrative act herein complained, and an "in-fact injury", since assessments are not directly related to real property taxes as such. Assessments are used by a municipality to fix tax rates based upon the budgets created through the legislative and political process. A shift in tax burdens under a properly executed administrative assessment plan demonstrates at worst a perceived general injury to the public at large in the municipality targeted.
Assuming all alleged acts to be true no plan has been revealed which would indicate that the Respondent engaged in some dastardly undertaking, seeking to impale some identifiable group or entity upon the barbed spear of taxation, while applying the soothing salve of a scented lotion to undercut the tax burden on some other identifiable tax group.
That commercial properties may experience a lowering of the tax burden without yet identifying a tax rate of either the Town or the Village with a shift in the tax load to the residential properties within the Village, merely highlights the need for ongoing assessment review and district wide reassessments as indicated by the statute, particularly in a dynamic real estate market ( RPTL § 301). If the Village as a municipal entity may not act in the capacity of parens patrie it is barred from engaging in tax-payer like litigation, attacking the state or the actions of the administrative agency. ( Inc. Village of Northport v. Town of Huntington, infra).
The Village has further failed to show that the governmental action herein complained, if not subject to review would insulate it from judicial scrutiny. It has failed to demonstrate any reprehensible unconstitutional or extra jurisdictional methodology employed by the Respondents, except to attack tangentially some appraisal methodology placed in an alleged suspect class by the Petitioner's general conclusory statements. But, Petitioner fails to recognize that appraisal methodologies and techniques are flexible and expansive, particularly where a dynamic real estate market is the subject of the valuation estimates for a multiplicity of uses such as taxation, condemnation, public aid, bonding requirements, insurance, foreclosure, and other real estate valuation purposes. Any attack on appraisal methodology as applied to individual parcels is adequately and amply protected by the exclusive remedy created in Real Property Tax Law Articles 57, including excessive, unequal or unlawful assessments ( RPTL § 706). See also, Mtr of Kaufman 42nd Street Co. v. Bd. of Assessors of Atlantic Beach, 273 AD2d 239, 709 NYS2d 445(2nd Dept., 2000).
Taken as a whole and exploring the four corners of the pleadings, the proposed amended pleading, the supporting affidavits, affirmations and exhibits as well as Respondents' Cross-Motion and supporting papers the Petitioner has failed to achieve the subtle level of an alluring whisper even hinting that it has the necessary standing or capacity to bring the proceedings commenced. While in theory the concepts of justiciability, capacity and standing, carry nuances which at times defy articulation, here that problem does not exist. While the concept of standing in a taxpayer or "citizens suits" has been explored at length by the Court of Appeals in the areas of zoning, environmental law, other land-use litigation matters, and social service entitlements, neither the capacity or the standing issues have morphed to the point of flooding the Court with unnecessary litigation.
Limitations on the concept of standing have again gained the attention of the Court of Appeals in a proceeding attacking the rate-making power of the State Board of Real Property Services where the Court concluded that under the statute in question ( RPTL § 1218) a town lacked the capacity to challenge a specialized equalization rate resulting from an administrative action and having determined that the Town lacked capacity to challenge, the Court of Appeals saw no need to address the issue of standing under the facts and circumstances of the case. (Mtr. of the Town of Riverhead [Densieski] v. State Board of Real Property Services, 5 NY3d 36, 799 NYS2d 533 (2005).
Having concluded that the Village lacks the capacity and the standing to commence this proceeding, it is not necessary to consider the other issues raised including injunctive relief and counsel fees.
Any other requests not addressed herein are deemed denied. Respondents are directed to settle Judgment on notice to Petitioner on or before April 25, 2006.
The foregoing constitutes the DECISION of this Court.