                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 12, 2017                    522299
________________________________

DIANE CORVETTI,
                     Appellant-
                     Respondent,
     v

TOWN OF LAKE PLEASANT et al.,                MEMORANDUM AND ORDER
                    Respondents-
                    Appellants.

(And Six Other Related Actions.)
________________________________


Calendar Date:    November 22, 2016

Before:   Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                              __________


      Donohue, Sabo, Varley & Huttner, LLP, Albany (Kenneth G.
Varley of counsel), for appellant-respondent.

      Murphy, Burns, Barber & Murphy, LLP, Albany (James J. Burns
of counsel), for respondents-appellants.

                              __________


Egan Jr., J.

      Cross appeals (1) from an order of the Supreme Court
(Aulisi, J.), entered September 16, 2015 in Hamilton County,
which, among other things, partially granted defendants' motion
for summary judgment dismissing the complaints, and (2) from an
order of said court, entered September 14, 2015 in Hamilton
County, which, upon reargument, among other things, reinstated
plaintiff's complaint in action No. 1.

      Plaintiff owns three parcels of land located in the Town of
Lake Pleasant, Hamilton County – a 51.6-acre parcel upon which
                               -2-                522299

her home is located and two additional parcels consisting of
approximately 204 acres and 68 acres. A portion of plaintiff's
residential parcel and each of the remaining two parcels are
subject to a forest management plan and receive a tax exemption
under RPTL 480-a. Plaintiff has long disputed the annual tax
assessments imposed by defendant Town of Lake Pleasant, resulting
in repeated, protracted and often successful litigation (see
Matter of Corvetti v Winchell, 75 AD3d 1013 [2010], lv denied 16
NY3d 701 [2011]; Matter of Corvetti v Winchell, 51 AD3d 47
[2008]; Corvetti v Town of Lake Pleasant, 227 AD2d 821 [1996];
Matter of Corvetti v Board of Assessors of Town of Lake Pleasant,
210 AD2d 667 [1994], lv denied 85 NY2d 802 [1995]).

      In 2001, plaintiff and her then husband, Richard Corvetti,
commenced the first of the seven actions now before us against
the Town, defendant Town of Lake Pleasant Board of Assessment
Review (hereinafter BAR), defendant Edward Winchell (then the
Town's assessor) and various individual members of the BAR,
alleging that, beginning in 1996 and continuing through 2000, the
named defendants had systematically overvalued the subject
properties, thereby violating plaintiff's and Corvetti's equal
protection and due process rights.1 The named defendants
answered and raised, among other defenses, collateral estoppel
and absolute or qualified immunity. Similar civil rights actions
were commenced in 2002, 2003, 2004, 2005, 2006 and 2010 against,
among others, the Town, and additional defendants were named,
including – insofar as is relevant here – defendant Frank Mezzano
(individually and in his capacity as Town Supervisor), defendant
Victoria Buyce (individually and in her capacity as Town
Assessor)2 and certain of the newly appointed BAR members.

      Following joinder of issue and discovery, defendants moved
in January 2014 for summary judgment dismissing all seven of


    1
        Corvetti surrendered his rights to the relevant
properties when he and plaintiff divorced in 2008, and his name
does not appear in either the caption of the orders that are the
subject of these appeals or the corresponding notices of appeal.
    2
        Buyce succeeded Winchell as the assessor in 2005.
                              -3-                522299

plaintiff's complaints. Plaintiff opposed this motion,
contending, among other things, that defendants violated her
civil rights under 42 USC § 1983. By order dated July 18, 2014
and entered September 16, 2015 (hereinafter the first order),
Supreme Court dismissed action No. 1 in its entirety, finding
that it presented the same issues that were addressed and decided
in a prior CPLR article 78 proceeding and, hence, the subject
action was barred by collateral estoppel. Supreme Court also
dismissed all causes of action against the BAR (finding that the
BAR was entitled to absolute or qualified governmental immunity),
Mezzano and all remaining defendants who were named in their
individual capacities, as well as plaintiff's claims for punitive
damages. Finally, the court found questions of fact as to
plaintiff's due process and equal protection claims with respect
to the Town and the assessors (in their official capacities) and
denied defendants' motion for summary judgment to that extent.

      In August 2014, plaintiff moved to reargue, seeking
reinstatement of action No. 1 and all claims against the BAR and
the individually named defendants, as well as her claims for
punitive damages, and defendants cross-moved to reargue, seeking
dismissal of all remaining claims against them. Thereafter, by
order entered September 14, 2015 (hereinafter the second order),
Supreme Court partially granted plaintiff's motion – reinstating
action No. 1 and barring action No. 2 instead, reinstating
plaintiff's claims against Winchell and Buyce in their individual
capacities and reinstating plaintiff's punitive damages claims
except as to action No. 2; the court denied defendants' cross
motion in its entirety. Plaintiff now appeals from Supreme
Court's first order insofar as it "dismissed [a]ction No. 1 in
it[s] entire[t]y[,] dismissed plaintiff's claim for punitive
damages . . . and dismissed plaintiff's claims against [the BAR,
Mezzano] and the individually named defendants," as well as from
so much of Supreme Court's second order as "dismissed [a]ction
No. 2 and denied plaintiff's application for reargument with
respect to [the] dismissal of her claims against the [BAR]."
Defendants, in turn, cross-appeal from Supreme Court's first
order to the extent that it partially denied their motion for
summary judgment dismissing all seven complaints, as well as from
Supreme Court's second order insofar as it partially granted
plaintiff's motion to reargue and denied defendants' cross motion
                              -4-                522299

to reargue in its entirety.

      Initially, we agree that the claims asserted by plaintiff
in action No. 2 relative to her 2001 assessment are identical to
the claims raised in a prior CPLR article 78 proceeding and,
therefore, action No. 2 is barred by principles of collateral
estoppel. "Collateral estoppel, or issue preclusion, precludes a
party from relitigating in a subsequent action or proceeding an
issue clearly raised in a prior action or proceeding and decided
against that party, whether or not the tribunals or causes of
action are the same. The doctrine applies if the issue in the
second action is identical to an issue which was raised,
necessarily decided and material in the first action, and the
plaintiff had a full and fair opportunity to litigate the issue
in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93
NY2d 343, 349 [1999] [internal quotation marks, ellipsis and
citations omitted]; see Town of Fort Ann v Liberty Mut. Ins. Co.,
137 AD3d 1389, 1390 [2016]). "This rule applies to claims
actually litigated or that could have been litigated, and despite
the fact that the claims are based on a different theory or seek
a different remedy" (Thomas v City of New York, 239 AD2d 180, 180
[1997] [citations omitted]). When this defense is raised, "[t]he
burden rests upon the proponent of collateral estoppel to
demonstrate the identicality and decisiveness of the issue, while
the burden rests upon the opponent to establish the absence of a
full and fair opportunity to litigate the issue in the prior
action or proceeding" (Parker v Blauvelt Volunteer Fire Co., 93
NY2d at 349 [internal quotation marks, brackets and citation
omitted]; see Gadani v DeBrino Caulking Assoc., Inc., 86 AD3d
689, 691 [2011]).

      Here, a comparison of the allegations contained in the
petition filed in conjunction with the 2001 CPLR article 78
proceeding with the allegations set forth in the complaint filed
in action No. 2 reveals that plaintiff asserted virtually
identical constitutional claims in each pleading – specifically,
that the manner in which her properties were assessed violated
her equal protection and due process rights and gave rise to a
claim for damages under 42 USC § 1983. While it is true that the
judgment rendered by Supreme Court in the context of resolving
the CPLR article 78 proceeding did not expressly address the
                              -5-                522299

merits of the constitutional claims asserted therein, Supreme
Court was well aware of plaintiff's arguments on this point and,
in granting the named respondents' motion for summary judgment
dismissing that proceeding, necessarily determined that the
underlying constitutional claims were lacking in merit. Hence,
we are satisfied that "all of the factual issues dispositive of
the constitutional claims being raised in . . . action [No. 2]
were necessarily decided [by Supreme Court] in the prior article
78 proceeding" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at
350; compare O'Donnell v Ferguson, 23 AD3d 1005, 1007 [2005]; Liu
v New York City Police Dept., 216 AD2d 67, 68 [1995], lv denied
87 NY2d 802 [1995], cert denied 517 US 1167 [1996]). As the
named defendants in action No. 2 met their initial burden of
demonstrating "the identicality and decisiveness of the issue" at
hand, it was incumbent upon plaintiff to show that she lacked "a
full and fair opportunity to litigate [that] issue" (Parker v
Blauvelt Volunteer Fire Co., 93 NY2d at 349 [internal quotation
marks and citation omitted]), which she failed to do.
Accordingly, Supreme Court did not err in finding that action No.
2 was barred by principles of collateral estoppel.3



    3
        In light of our conclusion in this regard, plaintiff's
arguments relative to the dismissal of her claims against
Mezzano, who was named as a defendant only in action No. 2, are
academic. Were we to address the merits of her argument, we
would find that plaintiff's claims against Mezzano were properly
dismissed. According to plaintiff, Mezzano, who served as Town
Supervisor from 1993 to 2009, violated her constitutional rights
by failing to remove Winchell, who was the Town's appointed
assessor from October 1990 to December 2005, from his position
during the relevant time period or to otherwise prevent Winchell
from overvaluing her properties. The flaw in plaintiff's
argument on this point is that Mezzano was not Winchell's
supervisor; rather, Winchell served at the pleasure of the Town
Board (see Town Law §§ 20, 24; RPTL 310). Accordingly, inasmuch
as Mezzano lacked the authority to singlehandedly remove Winchell
from office or otherwise curtail his allegedly impermissible
activities, plaintiff's claims against Mezzano were properly
dismissed.
                              -6-                522299

      We reach a similar conclusion regarding the dismissal of
all claims against the BAR and its individual members, as we
agree with Supreme Court that, as a quasi-judicial body, the BAR
is entitled to absolute immunity. The principles governing the
application of absolute or qualified immunity were summarized by
the Court of Appeals in Arteaga v State of New York (72 NY2d 212
[1988]). As the Court explained, "[w]hether an action receives
only qualified immunity, shielding the government except when
there is bad faith or the action taken is without a reasonable
basis or absolute immunity, where reasonableness or bad faith is
irrelevant, requires an analysis of the functions and duties of
the particular governmental official or employee whose conduct is
in issue. The question depends not so much on the importance of
the actor's position or its title as on the scope of the
delegated discretion and whether the position entails making
decisions of a judicial nature – i.e., decisions requiring the
application of governing rules to particular facts, an exercise
of reasoned judgment which could typically produce different
acceptable results" (id. at 216 [internal quotation marks and
citations omitted]).

      Consistent with the provisions of RPTL 523, the Town was
required to have a board of assessment review (see RPTL 523 [1]
[a]), and its individual members, in turn, were required to
attend mandated training (see RPTL 523 [1] [d]; [2]). Here, in
accordance with its appointed duties, the BAR had a statutory
obligation to "fix the place or places for the hearing of
complaints in relation to assessments" (RPTL 525 [1]) and, on the
date required by law, to "meet to hear complaints in relation to
assessments" (RPTL 525 [2] [a]). Upon convening for the required
hearing, the BAR could "administer oaths, take testimony and hear
proofs in regard to any complaint and the assessment to which it
relates" and, further, could "require the person whose real
property is assessed, or his or her agent or representative, or
any other person, to appear before [it] and be examined
concerning such complaint, and to produce any papers relating to
such assessment" (RPTL 525 [2] [a]). "Minutes of the examination
of every person [so] examined" were required to "be taken and
filed in the office of the . . . town clerk" (RPTL 525 [2] [a]),
and the BAR thereafter was required to "determine the final
assessed valuation or taxable assessed valuation . . . of the
                              -7-                522299

real property of each complainant" (RPTL 525 [3] [a]), "prepare
and verify a statement showing the changes determined to be made
by them in the assessments" and notify each complainant of its
determination and the time within which to seek judicial review
thereof (RPTL 525 [4]). In light of these statutory mandates, it
is apparent that the BAR's determinations constitute decisions of
a quasi-judicial nature and, hence, the BAR (and its individual
members) are entitled to absolute immunity (see generally Matter
of Town of Greenville, Orange County v New York State Bd. of Real
Prop. Servs., 251 AD2d 788, 789 [1998]).

      With respect to the alleged violation of plaintiff's equal
protection and due process rights, plaintiff argues that, in the
context of its second order, Supreme Court properly reinstated
her 42 USC § 1983 claims against Winchell and Buyce in their
individual capacities, as well as her claim for punitive damages.
Defendants, in turn, argue that such claims should be dismissed
in their entirety – citing the findings made by Supreme Court in
its first order, wherein the court concluded that plaintiff
failed to demonstrate that Winchell and Buyce were personally
involved in the alleged deprivation of her constitutional
rights.4 Defendants further contend, in the context of their
cross appeal, that such claims should be dismissed against the
Town.


    4
        In the first order, Supreme Court found that questions of
fact existed with respect to plaintiff's due process and equal
protection claims, but dismissed all causes of action against
each of the individually named defendants – leaving intact only
plaintiff's constitutional claims against the Town and the
assessors (in their official capacities). In so doing, Supreme
Court expressly noted that plaintiff's allegations as to
Winchell's and Buyce's personal involvement in the alleged
deprivation of her constitutional rights were conclusory and
unsupported by the record – a finding that was equally fatal to
plaintiff's claim for punitive damages. Upon reargument, Supreme
Court – without explanation – reinstated plaintiff's 42 USC
§ 1983 and punitive damages claims against Winchell and Buyce,
noting only that such claims could be pursued against municipal
defendants who were sued in their individual capacities.
                              -8-                522299

      "When a taxpayer demonstrates that he or she has been the
victim of an aggravated pattern of misuse of the taxing power, a
42 USC § 1983 due process claim has been stated" (Abbott v Town
of Delaware, 238 AD2d 868, 870 [1997] [internal quotation marks
and citations omitted], lv denied 90 NY2d 805 [1997]; see 423 S.
Salina St. v City of Syracuse, 68 NY2d 474, 484 [1986], appeal
dismissed and cert denied 481 US 1008 [1987]; Way v City of
Beacon, 96 AD3d 829, 831 [2012]). Similarly, a taxpayer's
allegation that a municipality has selectively reassessed his or
her property will give rise to an equal protection claim under 42
USC § 1983 (see Matter of Resnick v Town of Canaan, 38 AD3d 949,
952 [2007]; Abbott v Town of Delaware, 238 AD3d at 870). More
specifically, "[w]hen a defendant sued for discrimination under
[42 USC § 1983] is a municipality, the plaintiff is required to
show that the challenged acts were performed pursuant to a
municipal policy or custom. The plaintiff need not identify an
express rule or regulation, but can show that a discriminatory
practice of municipal officials was so persistent or widespread
as to constitute a custom or usage with the force of law, or that
a discriminatory practice of subordinate employees was so
manifest as to imply the constructive acquiescence of senior
policy-making officials" (Littlejohn v City of New York, 795 F3d
297, 314-315 [2015] [internal quotation marks and citations
omitted]). A local government may not, however, be sued under 42
USC § 1983 under a respondeat superior theory (see Shelton v New
York State Liq. Auth., 61 AD3d 1145, 1148 [2009]), nor may it be
sued "for a constitutional injury inflicted by employees or
agents [who were] not acting pursuant to [an] official municipal
policy or custom" (315-321 Realty Co. Assoc., LLC v City of New
York, 33 AD3d 509, 509 [2006]).

      With respect to plaintiff's constitutional claims against
the Town, the underlying complaints allege – in a fleeting and
conclusory fashion – that Winchell and Buyce acted "with the full
knowledge" of the Town and, therefore, their allegedly
impermissible acts necessarily "constitute[d] the official policy
of the Town." According to plaintiff, the existence of this
official policy is further evidenced by the fact that the
assessed value of her properties increased in each of the subject
revaluation years. At the summary judgment stage of this
litigation, however, plaintiff must do more than merely allege a
                               -9-                522299

pattern of discrimination.

      Here, in support of their motion for summary judgment,
defendants established through, among other things, the
examination before trial testimony of and affidavits tendered by
Winchell and Buyce that each of the challenged assessments was
the product of a Town-wide revaluation process that, in turn, was
conducted by an outside consultant utilizing an established,
mass-appraisal methodology – a process defined by the consultant
as "a systematic way [of] apprais[ing], on a mass basis, every
property in the [T]own as of a common valuation date." Such
proof further established that, although the assessed value of
plaintiff's parcels indeed initially increased in each of the
subject revaluation years,5 Winchell and Buyce – after visiting a
sampling of properties to ensure that the consultant's valuations
were consistent with the actual characteristics thereof –
thereafter adopted the fair market value assigned by the
consultant without any adjustment thereto, with Winchell
believing that the value assigned in each of the subject years
was reasonable. Buyce attested to following a similar procedure
during the time that she was the Town's assessor and expressly
averred that plaintiff's properties "were reassessed [in] the
same [manner] as every other property in the Town."

      In opposition, although plaintiff highlighted perceived
flaws in the mass-appraisal methodology, took issue with the
manner in which Winchell and Buyce applied (or refused to apply)
various factors relative thereto and detailed what she regarded
as a long-standing pattern of overvaluing her properties,
plaintiff's proof – in our view – fell short of raising a
question of fact as to whether the Town, through Winchell and
Buyce, engaged in "a discriminatory practice . . . [that] was so
persistent or widespread as to constitute a custom or usage with
the force of law" (Littlejohn v City of New York, 795 at 315
[2015] [internal quotation marks and citations omitted]). Absent


     5
        As noted previously, the bulk of plaintiff's assessments
over the years were reduced either by stipulation, settlement,
adjustment by the BAR or as a result of RPTL article 7
proceedings.
                              -10-               522299

an established policy or custom, and inasmuch as the Town cannot
be vicariously liable for the acts of Winchell and Buyce, Supreme
Court should have granted defendants' motion for summary judgment
dismissing plaintiff's 42 USC § 1983 claims against the Town.6
Similarly, inasmuch as punitive damages are not available against
a municipality (see Cardoza v City of New York, 139 AD3d 151, 167
n 9 [2016]; Dorian v City of New York, 129 AD3d 445, 445-446
[2015]; Rekemeyer v Cerone, 252 AD2d 22, 26 [1999]), plaintiff's
claims against the Town in this regard also must be dismissed.

      Turning to the liability of Winchell and Buyce in their
individual capacities, an individual may be held liable under 42
USC § 1983 only if he or she was "personally involved in the
alleged deprivation" of the plaintiff's constitutional rights
(Littlejohn v City of New York, 795 F3d at 314 [internal
quotation marks and citations omitted]). To that end, "it [is]
incumbent upon [the] plaintiff to allege particular facts
indicating that each of the individual defendants was personally
involved in the deprivation of the plaintiff's constitutional
rights; mere bald assertions and conclusions of law do not
suffice" (Shelton v New York State Liq. Auth., 61 AD3d at 1148
[internal quotation marks, emphasis, brackets and citations
omitted]). "Personal involvement can be established by showing
that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed
of the violation through a report or appeal, failed to remedy the
wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance


    6
        Our prior decisions involving plaintiff's properties are
not to the contrary. In addition to pertaining to entirely
different assessment years than the ones at issue here, Corvetti
v Town of Lake Pleasant (227 AD2d 821 [1996], supra) addressed
the viability of the asserted civil rights claim in the context
of a motion to dismiss (as opposed to the instant summary
judgment motion), and Matter of Corvetti v Board of Assessors of
the Town of Lake Pleasant (210 AD2d 667 [1994], supra) concerned
whether the named respondents engaged in a pattern of retaliatory
and discriminatory conduct for purposes of an additional
allowance under RPTL 722 (2).
                              -11-               522299

of such a policy or custom, (4) the defendant was grossly
negligent in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference by
failing to act on information indicating that unconstitutional
acts were occurring" (Littlejohn v City of New York, 795 F3d at
314 [internal quotation marks, ellipsis and citation omitted];
see generally Shelton v New York State Liq. Auth., 61 AD3d at
1149).

      As noted previously, Winchell and Buyce maintained that
they relied heavily (and often exclusively) upon the consultant's
computations in determining the appraised value to be assigned
to, among other properties, plaintiff's residential parcel –
essentially taking the position that they lacked the expertise to
challenge the valuations determined by the consultant, as the
result of which the values produced through the revaluation
process "for each Town property, including [plaintiff's]
properties, were accepted without change . . . and transferred to
the Town's tentative tax rolls." In light of the procedures
employed, defendants contend, Winchell and/or Buyce lacked the
opportunity to manipulate plaintiff's assessments in the fashion
alleged.

      As a starting point, there is no question that, despite
their reliance upon and deference to the subject consultant, the
individual assessors ultimately were responsible for the values
assigned to each property within the Town and, more to the point,
retained certain input and/or discretionary authority with
respect to the valuation process. For example, Winchell
acknowledged at his examination before trial that he collected
and entered certain data for the appraisal model, including
property size and building style, size and condition.
Additionally, the record reflects that both Winchell and Buyce
had the ability to adjust certain factors applicable to the
assessment formula, including the location multiplier, the
influence factor and the percent good factor.7 Indeed, both


    7
        The percent good factor measures the depreciation
attributable to a building, which, in turn, is measured by the
effective age of the structure.
                              -12-               522299

Winchell and Buyce acknowledged applying a positive influence
factor to plaintiff's property – thereby increasing the assessed
value – based upon, among other things, certain topographical
features, and Winchell admitted that he also adjusted the percent
good factor for plaintiff's property. Hence, there is little
question that Winchell and Buyce indeed were personally involved
– to one degree or another – in valuing plaintiff's properties.
Without more, however, personal involvement in the valuation
process does not automatically translate into a deprivation of
plaintiff's constitutional rights.

      With respect to the issue of improper motive,
discriminatory or retaliatory conduct and/or malicious intent,
the record makes clear that the factors over which Winchell and
Buyce retained control were largely subjective, and the manner in
which such factors were applied fell squarely within Winchell's
and Buyce's essentially unfettered discretion. For these
reasons, it was incumbent upon defendants to make a prima facie
showing, in the context of their motion for summary judgment,
that — with respect to Winchell and Buyce — such factors were
applied fairly and evenhandedly or, at the very least, that there
was a reasonable explanation for treating allegedly similar
properties within the Town in a seemingly disparate fashion.
This they failed to do. Without belaboring the point, suffice it
to say that defendants' proof, which relied heavily upon the
affidavits and examination before trial testimony of Winchell and
Buyce, fell short of establishing that the assessors valued
plaintiff's property in a nondiscriminatory fashion and,
therefore, defendants failed to demonstrate their entitlement to
summary judgment in this regard. Moreover, even assuming that
defendants did meet their initial burden on the subject motion,
plaintiff's proof in opposition, including the affidavits
tendered by her expert and her former husband,8 as well as the


    8
        Plaintiff's former husband averred that, after reaching a
settlement of certain issues with the Town in 1997, he
encountered Winchell in a local parking lot and expressed the
hope that they would be able to "bury the hatchet." In response,
Winchell purportedly indicated that "he disagreed with the
lawyers and was going 'to put it right back up'" at the next
                              -13-                 522299

valuation data submitted for other allegedly similarly situated
properties, was sufficient to raise a question of fact on this
point. Accordingly, Supreme Court properly reinstated the civil
rights (and punitive damages) claims against Winchell and Buyce.
The parties' remaining arguments, to the extent not specifically
addressed, have been examined and found to be lacking in merit.

     Garry, J.P., Rose, Clark and Mulvey, JJ., concur.



      ORDERED that the orders are modified, on the law, without
costs, by reversing so much thereof as denied defendants' motion
for summary judgment dismissing the complaints against defendant
Town of Lake Pleasant; motions granted to said extent and
complaints against said defendant dismissed; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




revaluation," an apparent reference to raising the assessment on
the subject properties. Although Winchell denied threatening to
raise the assessment at the next revaluation, this conflicting
proof presents a question of fact as to whether plaintiff's
assessment was raised in retaliation for pursuing litigation
against certain of the named defendants.
