Opinion
August 21, 1989
Appeal from the Supreme Court, Nassau County (McGinity, J.).
Ordered that the order and judgment is modified, on the law, (1) by deleting so much of the fourteenth decretal paragraph thereof as declared that "protest of [tax payments] must have been exclusively evidenced by the commencement of a proceeding to review the assessed value of the property pursuant to Article 7 of the Real Property Tax Law", and (2) by deleting the fifteenth decretal paragraph thereof which dismissed "the demand for the relief of plaintiff's complaint that seeks refund of taxes overpaid for the 1983/84 tax year in which the exemption afforded by Section 485-b Real Prop. Tax of the Real Property Tax Law was not extended" and reinstating that portion of the amended complaint; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order and judgment is reversed insofar as cross-appealed from, on the law, without costs or disbursements, the second, ninth and tenth decretal paragraphs thereof are deleted, the motion to dismiss is granted, and it is declared that the Uniondale Union Free School District No. 2 is not liable for tax refunds; and it is further,
Ordered that the action against the defendants Board of Assessors of the County of Nassau and County of Nassau is severed and their time to serve an answer to the amended complaint is extended until 30 days after service upon them of a copy of this decision and order, with notice of entry.
The factual and procedural history of this case is described in this court's decision in Corporate Prop. Investors v. Board of Assessors ( 153 A.D.2d 656 [decided herewith]).
We initially note that the Supreme Court erred in denying the motion of the school district to dismiss the action as against it inasmuch as Nassau County Administrative Code § 6-26.0 (b) (3) (c) (L 1948, ch 851, § 2) relieves school districts from liability for the tax refunds in question (see, Corporate Prop. Investors v. Board of Assessors, supra; see also, Vantage Petroleum v. Board of Assessment Review, 91 A.D.2d 1037, 1038-1039, affd 61 N.Y.2d 695, citing Matter of Sperry Rand Corp. v. Board of Assessors, 77 A.D.2d 822).
In view of the fact that the plaintiff herein commenced a declaratory judgment action challenging the assessments in question in January 1984, we find that it sufficiently protested tax payments made subsequent thereto and while the action was still pending (see, Corporate Prop. Investors v. Board of Assessors, supra). However, we cannot decide that branch of the plaintiff's motion which was for the alternative relief of summary judgment on the issue of refund liability against the county defendants since there has not been joinder of issue with respect to those defendants (see, Corporate Prop. Investors v Board of Assessors, supra). In light of this determination, we do not consider the effect of the Laws of 1989 (ch 702) on the county defendants' liability, if any.
We have examined the parties' remaining contentions which are either without merit or need not be addressed in light of our determination. Lawrence, J.P., Rubin, Sullivan and Balletta, JJ., concur.