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

1353
CA 12-00328
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF THE APPLICATION UNDER
ARTICLE 7 OF THE REAL PROPERTY TAX LAW BY
DIANA SACHS AYLWARD, JOHN C. CARBONARA,
GRETCHEN CIRCONE, ROBERT FREEDMAN, MONTE K.
HOFFMAN, PETER HOGAN, NANCY KARP, JOEL
LEVIN, NORA SANTIAGO, THOMAS J. SCIME,
JONATHAN D. WEIR AND PETER ALLEN WEINMANN,
PETITIONERS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO AND ITS ASSESSOR AND BOARD
OF ASSESSMENT REVIEW, RESPONDENTS-RESPONDENTS.


WOLFGANG & WEINMANN, LLP, BUFFALO (JORGE S. DE ROSAS OF COUNSEL), FOR
PETITIONERS-APPELLANTS.

BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (JOEL R. KURTZHALTS
OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered November 18, 2011 in a proceeding pursuant
to RPTL article 7. The order denied petitioners’ motion to preclude
an interior inspection of their homes.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Supreme Court, Erie County, for further proceedings in
accordance with the following Memorandum: Petitioners commenced these
proceedings seeking review of their residential real property tax
assessments pursuant to RPTL article 7. They appeal from four orders
denying their motions to preclude respondents from conducting interior
inspections of their homes in order to prepare a defense to the
petitions. Petitioners contend that Supreme Court erred in requiring
them to move to preclude those inspections rather than requiring
respondents to move to allow the inspections. We agree.

     Discovery in RPTL article 7 proceedings is governed by CPLR 408,
which requires a court’s leave to obtain formal disclosure beyond a
notice to admit (see Matter of Wendy’s Rests., LLC v Assessor, Town of
Henrietta, 74 AD3d 1916, 1917). Here, the court failed to comply with
CPLR 408 in ordering petitioners either to move to preclude the
demanded inspections or to have any objection thereto deemed waived.
The court’s error significantly altered the proof required on this
                                 -2-                          1353
                                                         CA 12-00328

issue and thereby enabled respondents to access the interior of
petitioners’ homes without having to show its need for such access.
Indeed, respondents opposed the motions to preclude by submitting only
an affidavit in which their attorney asserted that petitioners had
presumptively consented to the interior inspections by having
challenged their tax assessments and that the publicly available
information about the properties was insufficient to prepare an
effective defense to the petitions. The attorney, however, did not
acknowledge that the interior details of the subject homes could have
just as easily been obtained by way of a notice to admit (see CPLR
408; CPLR 3123), a procedure that would not have required the leave of
a court.

     In sum, by proceeding in contravention of CPLR 408, the court
improperly relieved respondents of their burden to make the required
showing, such as by way of an appraiser’s affidavit, that interior
inspections were necessary to prepare their defense (see generally
Matter of Wendy’s Rests., 74 AD3d at 1917). Moreover, by erroneously
requiring petitioners to move to preclude, the court did not properly
evaluate the reasonableness of the inspections sought by respondents,
i.e., the court did not conduct the necessary Fourth Amendment
analysis balancing respondents’ need for interior inspections against
the invasion of petitioners’ privacy interests that such inspections
would entail (see Matter of Yee v Town of Orangetown, 76 AD3d 104,
111-113, citing Schlesinger v Town of Ramapo, 11 Misc 3d 697, 699-700;
see generally Camara v Municipal Court of City & County of San
Francisco, 387 US 523). Under these circumstances, we reverse the
orders and remit the matters to Supreme Court for further proceedings
not inconsistent with our decision herein.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
