                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:   December 8, 2016                522625
                                                       523236
________________________________

In the Matter of CITY OF
   TROY,
                    Respondent,
      v

ASSESSOR OF THE TOWN OF
   BRUNSWICK et al.,
                    Appellants.

(Proceeding No. 1.)
_______________________________             MEMORANDUM AND ORDER

In the Matter of CITY OF
   TROY,
                    Respondent,
      v

ASSESSOR OF THE TOWN OF
   BRUNSWICK et al.,
                    Appellants.

(Proceeding No. 2.)
________________________________


Calendar Date:   October 21, 2016

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

                             __________


      Tuczinski, Cavalier & Gilchrist, PC, Albany (Johnathan B.
Tingley of counsel), for appellants.
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      Daniel G. Vincelette, Corporation Counsel, Troy, for
respondent.

                           __________


McCarthy, J.P.

      Appeals (1) from an order of the Supreme Court (Elliott
III, J.), entered November 2, 2015 in Rensselaer County, which,
in proceeding No. 1 pursuant to RPTL article 7, partially granted
petitioner's motion to compel discovery, and (2) from an order of
said court, entered March 22, 2016 in Rensselaer County, which,
in proceeding No. 2 pursuant to RPTL article 7, denied
respondents' motion to partially dismiss the petition.

      These are two related tax certiorari proceedings involving
the same parties and property. In July 2014, petitioner
commenced proceeding No. 1 pursuant to RPTL article 7 seeking a
reduction of respondents' 2014 tax assessment of a portion of the
Frear Park Golf Course, owned and operated by petitioner. In
December 2014, petitioner served a notice to take deposition of
respondent Assessor of the Town of Brunswick, along with
discovery demands for certain materials. Respondents objected to
these demands in January 2015, stating that "discovery in a tax
certiorari proceeding is unavailable in the absence of a [c]ourt
order."

      Thereafter, petitioner moved to compel discovery and
deposition. In an affirmation in support of the motion,
petitioner asserted that the deposition was necessary for its
claim of selective reassessment. In this regard, petitioner
asserted that respondents did not conduct a municipal-wide
revaluation or update for the 2014 assessment roll and did not
review or revise the assessed values of two other golf course
properties located in the Town. Petitioner further stated that
respondents had denied its informal discovery request, "despite
[p]etitioner's good faith effort to resolve this issue" with
respondents' counsel. Supreme Court partially granted
petitioner's motion to the extent that it sought to depose the
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Assessor, concluding that the information sought by the
deposition was material and necessary in preparing for trial and
would be limited to the underlying facts forming the basis for
the assessment. Respondents appeal from this order.

      In the interim, in July 2015, during the pendency of its
discovery motion, petitioner commenced proceeding No. 2, also
pursuant to RPTL article 7, challenging respondents' assessment
of the same property in 2015, alleging, among other things, that
the 2014 assessment constituted unlawful selective reassessment,
which continued to be perpetuated on the 2015 assessment roll.
The 2015 assessment of the property was identical to the 2014
assessment. Respondents moved to dismiss so much of the 2015
petition as asserted a claim for unlawful selective reassessment
on the grounds that the claim was time-barred and precluded by
the rule against claim splitting. Supreme Court denied the
motion, holding that petitioner had timely asserted a selective
reassessment claim in the 2014 petition. Respondents appeal from
this order.

      "A property owner may challenge an assessment pursuant to
RPTL article 7 on several grounds, including that the assessment
is excessive, unequal or unlawful" (Matter of Jacobowitz v Board
of Assessors for Town of Cornwall, 121 AD3d 294, 299 [2014]
[internal quotation marks and citations omitted]). Furthermore,
"[i]t is well settled that a system of selective reassessment
that has no rational basis in law violates the equal protection
provisions of the constitutions of the United States and the
State of New York" (Matter of Carroll v Assessor of City of Rye,
N.Y., 123 AD3d 924, 925 [2014] [internal quotation marks and
citation omitted]).

      "[D]iscovery in a RPTL article 7 proceeding is governed by
CPLR 408, pursuant to which trial courts have broad discretion in
directing the disclosure of material and necessary information"
(Matter of Niagara Mohawk Power Corp. v City of Saratoga Springs
Assessor, 2 AD3d 953, 954 [2003]; see Matter of Greens at
Washingtonville, Ltd. v Town of Blooming Grove, 98 AD3d 1118,
1119 [2012]). The trial court's decision to compel discovery is
accorded deference on appeal and should not be disturbed absent
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an abuse of discretion as a matter of law (see Matter of 425 Park
Ave. Co. v Finance Adm'r of City of N.Y., 69 NY2d 645, 647
[1986]; Matter of General Elec. Co. v Macejka, 117 AD2d 896, 897
[1986]). Additionally, to obtain discovery, a party must submit
an affirmation showing "a good faith effort to resolve the issues
raised by the [discovery] motion" or indicating "good cause" why
no communications occurred between the parties in this regard (22
NYCRR 202.7 [a] [2]; [c]; see Matter of Greenfield v Board of
Assessment Review for Town of Babylon, 106 AD3d 908, 908 [2013]).

      A tax certiorari proceeding must be commenced "within [30]
days after the final completion and filing of the assessment roll
containing such assessment" (RPTL 702 [2]; see Matter of
Niskayuna Citizens Unfairly Taxed v Christensen, 134 AD2d 762,
763 [1987]). Furthermore, "a separate proceeding [must] be
timely commenced to challenge each tax assessment for which
relief is sought" (Matter of Scellen v Assessor for City of Glens
Falls, 300 AD2d 979, 980 [2002]). Finally, "[a] party invoking
the narrow doctrine against [claim] splitting . . . must show
that the challenged claim raised in the second action [or
proceeding] is based upon the same liability in the prior action
[or proceeding], and that the claim was ascertainable when the
prior action [or proceeding] was commenced" (Melcher v Greenberg
Traurig LLP, 135 AD3d 547, 552 [2016]; see Craig-Oriol v Mount
Sinai Hosp., 201 AD2d 449, 450 [1994], lv denied 85 NY2d 804
[1995]).

      Contrary to respondents' assertion, petitioner adequately
pleaded an unlawful selective reassessment claim in its 2014
petition. Review of tax assessments is "remedial in character"
and, therefore, pleadings in tax certiorari proceedings "should
be liberally construed to the end that the taxpayer's right to
have his [or her] assessment reviewed should not be defeated by a
technicality" (Matter of Great E. Mall v Condon, 36 NY2d 544, 548
[1975] [internal quotation marks and citation omitted]; cf.
Matter of Frei v Town of Livingston, 50 AD3d 1381, 1382 [2008]).
The 2014 petition alleges that the challenged assessment is
"unequal in that it has been made at a higher proportionate
valuation than the assessments of other taxable property of the
same major type or, if applicable, classification, on the same
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                                                 523236

rolls by the same assessing officer and such inequality is
demonstrated by all the other real properties assessed upon the
same assessment roll, which are assessed at 26.70% of market
value. Said property is assessed at $105,638, which is 282% of
the market value of $37,452." The petition further alleges that
"respondents have not applied the same rule, methods or systems
of determining the valuation and computing the assessments upon
the property of . . . petitioner and the property of persons
other than . . . petitioner upon said respective assessment
rolls." By pleading that respondents did not apply the same
method of determining the valuation of petitioner's property as
compared to other similar properties assessed on the same roll,
petitioner sufficiently pleaded an unlawful selective
reassessment claim in the 2014 petition (see generally Matter of
Adams v Welch, 272 AD2d 642, 642-643 [2000]; Matter of Xerox
Corp. v Sanger, 104 AD2d 720, 721 [1984]).

      Next, Supreme Court did not abuse its discretion in
directing respondents to permit petitioner to depose the Assessor
subject to the restriction that such deposition would be limited
to the underlying facts forming the basis for the assessment,
which would pertain to the existence or nonexistence of a
rational basis for the reassessment (see Matter of Niagara Mohawk
Power Corp. v City of Saratoga Springs Assessor, 2 AD3d at 954;
see generally Matter of Weiner v Board of Assessors &/or Assessor
of Town/Vil. of Harrison, 69 AD3d 949, 950 [2010]. Finally, as
an affirmation submitted by petitioner's counsel revealed,
respondents categorically refused to permit the deposition of the
Assessor without a court order. Therefore, Supreme Court
properly concluded that petitioner did not violate 22 NYCRR 202.7
(see Matter of Greens at Washingtonville, Ltd. v Town of Blooming
Grove, 98 AD3d 1118, 1118-1119 [2012]; Matter of Saratoga Prop.
Devs., LLC v Assessor of City of Saratoga Springs, 62 AD3d 1107,
1108 [2009]).

      Given that petitioner sufficiently pleaded a selective
reassessment claim in the 2014 petition, Supreme Court properly
denied respondents' motion to dismiss the 2015 petition. That
petition was filed during the pendency of the 2014 proceeding and
in compliance with the 30-day period provided for in RPTL 702
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                                                   523236

(2), and, therefore, is timely (compare Matter of Avery v Aery,
60 AD3d 1133, 1134-1135 [2009], lv dismissed 12 NY3d 888 [2009]).
The selective reassessment claim asserted in the 2015 petition is
not barred by the rule against claim splitting, as it pertained
to respondents' 2015 assessment (see generally Matter of Carroll
v Assessor of City of Rye, N.Y., 123 AD3d at 925). Respondents'
remaining arguments have been considered and have been found to
be without merit.

     Egan Jr., Lynch, Clark and Aarons, JJ., concur.



     ORDERED that the orders are affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
