        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

375
CA 14-01460
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


IN THE MATTER OF THE TOROK TRUST,
PETITIONER-RESPONDENT,

                    V                                OPINION AND ORDER

TOWN BOARD OF TOWN OF ALEXANDRIA, TOWN OF
ALEXANDRIA, TOWN OF ALEXANDRIA BOARD OF
ASSESSMENT REVIEW AND ASSESSOR OF TOWN OF
ALEXANDRIA, RESPONDENTS.
----------------------------------------------
ALEXANDRIA CENTRAL SCHOOL DISTRICT, APPELLANT.


O’HARA, O’CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF
COUNSEL), FOR APPELLANT.

ANTONUCCI LAW FIRM, LLP, WATERTOWN (DAVID P. ANTONUCCI OF COUNSEL),
FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Jefferson County
(James P. McClusky, J.), entered March 26, 2014 in a proceeding
pursuant to RPTL article 7. The order directed the Alexandria Central
School District to make a tax refund to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Opinion by CENTRA, J.P.:

     In July 2007, petitioner commenced a tax certiorari proceeding
pursuant to Real Property Tax Law article 7 seeking to reduce the
assessment on its property for 2007. The Alexandria Central School
District (District), the appellant herein, was served but did not
intervene in the proceeding. Petitioner and respondents reached an
agreement in December 2008 to reduce the assessment on the property
for the 2007 tax year. In a stipulation of settlement and order
entered January 2009, the parties agreed that RPTL 727 would apply to
the settlement, and provided that, if petitioner had paid any taxes
and/or special ad valorem levies prior to the issuance of the order, a
tax and/or special ad valorem levy refund, based on the reduced
assessment, would be made by the District for the 2007-2008 school tax
year. The District issued a refund to petitioner for the 2007-2008
school tax year, but did not issue any refund for the 2008-2009 school
tax year. Petitioner moved to compel the District to issue a refund
for that school tax year, and the District opposed the motion on the
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                                                         CA 14-01460

ground that petitioner never commenced a tax certiorari proceeding for
the 2008 tax year. Supreme Court granted the motion, and we now
conclude that the order should be affirmed.

     The District, relying on Matter of Scellen v Assessor for City of
Glens Falls (300 AD2d 979), contends that, because petitioner did not
commence a tax certiorari proceeding challenging the 2008-2009
assessment, it cannot obtain a refund for any overpayments for that
year. In Scellen, the Third Department held that the petitioner was
required to challenge the assessed valuations of her properties while
her earlier challenge was pending and, having failed to do so, could
not obtain relief by relying on RPTL 727 (1) (id. at 980-981). In our
view, the plain language of RPTL 727 (1) and the legislative history
of that statute supports the conclusion that petitioner is entitled to
the relief sought here, and we therefore decline to follow Scellen.

     RPTL 727 (1) provides in relevant part that, “[e]xcept as
hereinafter provided, . . . where an assessment being reviewed
pursuant to this article is found to be unlawful, unequal, excessive
or misclassified by final court order or judgment, the assessed
valuation so determined shall not be changed for such property for the
next three succeeding assessment rolls prepared on the basis of the
three taxable status dates next occurring on or after the taxable
status date of the most recent assessment under review in the
proceeding subject to such final order or judgment. Where the
assessor or other local official having custody and control of the
assessment roll receives notice of the order or judgment subsequent to
the filing of the next assessment roll, he or she is authorized and
directed to correct the entry of assessed valuation on the assessment
roll to conform to the provisions of this section.”

     We must first examine “the plain language of the statute[] as the
best evidence of legislative intent” (Matter of Malta Town Ctr. I,
Ltd. v Town of Malta Bd. of Assessment Review, 3 NY3d 563, 568). The
statute imposes a three-year freeze of the assessment where an order
or judgment is issued determining that the assessment is unlawful,
unequal, excessive, or misclassified (see id.). Where, as here, there
is a stipulation between the parties agreeing to a lower assessment,
the stipulation has the same effect as a judicial determination that
the assessment is unlawful, unequal, excessive, or misclassified (see
Matter of Rosen v Assessor of City of Troy, 261 AD2d 9, 12). The
three-year freeze applies to the “next three succeeding assessment
rolls” from the “date of the most recent assessment under review”
(RPTL 727 [1]). Here, the assessment under review was the 2007 tax
year, and therefore the next three succeeding assessment rolls, i.e.,
from 2008 through 2010, must have that same assessment. The second
sentence of RPTL 727 (1), which was added a few years after the
statute was enacted, specifically addresses the situation in which the
assessor receives the order or judgment after the next assessment roll
has already been filed. In that case, the assessor is directed to
correct the assessed valuation “to conform to” the requirements of
RPTL 727. Once the assessment has been corrected, the property owner
may make an application for a refund (see RPTL 726 [1] [c]).
Therefore, the application of RPTL 727 (1) in this case resulted in an
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                                                         CA 14-01460

automatic reduction in the assessment for the 2008-2009 school tax
year, without the need for any filing of a tax certiorari proceeding
by petitioner.

     We further conclude that the legislative history of the statute
supports petitioner’s position that it is not barred from seeking a
refund here. The intent of RPTL 727 was to reduce the need for
repeated litigation in challenging tax assessments (see Governor’s
Approval Mem, Bill Jacket, L 1995, ch 693 [stating that, “by locking
in the judicially-reduced assessments on most properties for the
following three tax years, the bill will spare all parties the time
and expense of repeated court intervention”]; Sponsor’s Mem, Bill
Jacket, L 1995, ch 693 [“taxpayers who are successful in obtaining
reductions in assessments frequently have those assessments increased
to pre-judicially determined levels the succeeding year. Even more
disturbing is the fact that this pattern sometimes becomes an annual
event, forcing the taxpayer to seek judicial review each and every
year. This proposal would prohibit changes in assessed value for
three years following assessment reductions ordered in tax certiorari
proceedings (except under certain circumstances that are not relevant
here)”]; see also Rosen, 261 AD2d at 12 [The purpose “was to prevent
assessing units from increasing judicially reduced assessments in
succeeding years, to prevent taxpayers from perpetually challenging
their assessments . . . and to ‘spare all parties the time and expense
of repeated court intervention’ ”]). Indeed, “[w]here a dispute over
valuation has been resolved by court order, both the town and the
taxpayer should be allowed to rely on that resolution for a reasonable
period of time” (Malta Town Ctr. I, Ltd., 3 NY3d at 573 [Smith, J.,
dissenting]).

     The District’s contentions that requiring it to issue a refund
would amount to an unconstitutional gift of public money, and that it
cannot stipulate to a requirement that is barred by the constitution
and case law, are without merit inasmuch as there is a legal basis for
the School to issue the refund: RPTL 727 (1). The District’s further
contention that petitioner’s request for a refund is time-barred under
RPTL 726 (1) (c) is raised for the first time on appeal and is
therefore not properly before us (see Iocovozzi v Iocovozzi, 107 AD3d
1438, 1438-1439; Peak Dev., LLC v Construction Exch., 100 AD3d 1394,
1396; see generally Ciesinski v Town of Aurora, 202 AD2d 984, 985).

     In sum, requiring petitioner here to commence a tax certiorari
proceeding for the 2008-2009 school tax year would go against “[t]he
interest in reduced litigation contemplated by the statutory respite
period” (Malta Town Ctr. I, Ltd., 3 NY3d at 569). Accordingly, we
conclude that the court properly granted petitioner’s motion seeking a
refund of tax overpayments it made to the District for the 2008-2009
school tax year.



Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
