                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 18, 2015                      519571
________________________________

BENJAMIN STROUSE,
                      Appellant,
     v                                       MEMORANDUM AND ORDER

TOWN OF AUSTERLITZ,
                    Respondent.
________________________________

Calendar Date:   May 1, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                               __________


     Benjamin Strouse, Austerlitz, appellant pro se.

     Tal Rappleyea, Valatie, for respondent.

                               __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Nichols, J.),
entered December 13, 2013 in Columbia County, which, among other
things, granted defendant's cross motion to dismiss the
complaint.

      In 2008, defendant adopted various resolutions pursuant to
Town Law §§ 200 and 202 authorizing substantial improvements to
portions of Harrington Drive and Partridge Drive in the Town of
Austerlitz, Columbia County and creating a special assessment
district to fund such improvements. Plaintiff is the owner of
three parcels of land located within a particular subdivision in
the Town, including a landlocked and unimproved piece of property
identified on the relevant tax map as Lot 28. Although Lot 28
does not front or abut either Harrington Drive or Partridge
Drive, the tax map reflects that this parcel is subject to an
existing – albeit apparently undeveloped – right-of-way that
provides Lot 28 with legal access to Harrington Drive. For this
                              -2-                519571

reason, defendant included Lot 28 in the list of parcels
benefitted by the planned improvements and subject to the special
assessment.

      According to plaintiff, although he "unwittingly" paid the
first property tax bill that he received containing the $3,700
special assessment, it was not until he received his 2010
property tax bill in December 2009 that he first learned of the
special assessment. Plaintiff's informal efforts to persuade
defendant to remove Lot 28 from the special assessment district
proved to be unsuccessful, prompting him to commence this action
in September 2011 seeking similar relief. Defendant answered and
raised various affirmative defenses, including lack of subject
matter jurisdiction and the statute of limitations. Plaintiff
thereafter moved to compel certain discovery, and defendant
cross-moved to dismiss the complaint. Supreme Court, among other
things, granted defendant's cross motion, prompting this appeal.

      Plaintiff primarily contends that Supreme Court erred in
failing to address his due process and equal protection claims
i.e., that defendant failed to provide him with adequate notice
relative to the creation of the special assessment district and
the corresponding assessment imposed thereunder and, further,
selectively included Lot 28 within such district. Plaintiff's
constitutional claims, however, were raised for the first time in
his reply affidavit. Accordingly, these issues are not properly
before us (see Matter of Johnson Elec. Constr. Corp. v New York
State Dept. of Transp., 124 AD3d 1199, 1200 [2015]; Jackson v
Vatter, 121 AD3d 1588, 1589 [2014]; 10 Cardinal Lane, LLC v
N.K.T. Land Acquisitions, Inc., 117 AD3d 1133, 1136 n 2 [2014];
Schissler v Athens Assoc., 19 AD3d 979, 980 [2005]).

      To the extent that plaintiff contends that Supreme Court
otherwise erred in granting defendant's cross motion to dismiss,
we disagree. "Special assessments enjoy a presumption of
validity . . . requiring [the petitioning property owner] to show
by affirmative proof that [he or she has] not benefited from the
improvement or that it is nonassessable in the first instance"
(Matter of Batti v Town of Austerlitz, 71 AD3d 1260, 1261 [2010]
[internal quotation marks and citation omitted]). Here, although
the parties debate whether Lot 28 was properly included in the
                              -3-                  519571

special assessment district in the first instance, the merits of
their respective arguments need not detain us. Plaintiff's
recourse in this regard was to timely commence a CPLR article 78
proceeding to challenge the creation of the special assessment
district and/or the imposition of the assessment itself. This
action – commenced in 2011 to challenge resolutions adopted by
defendant in 2008 – is neither timely (see CPLR 217 [1]) nor in
the proper form. Accordingly, defendant's cross motion to
dismiss the complaint was properly granted.

     McCarthy, J.P., Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
