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Westchester Park Associates v. Unmack

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 26, 1986
123 A.D.2d 494 (N.Y. App. Div. 1986)

Opinion

September 26, 1986

Appeal from the Supreme Court, Erie County, Marshall, J.

Present — Dillon, P.J., Denman, Green, Balio and Lawton, JJ.


Order unanimously reversed on the law without costs and motion granted, in accordance with the following memorandum: The exclusive remedy for judicial review of the amount of an assessment is a tax certiorari proceeding under Real Property Tax Law article 7 (Niagara Mohawk Power Corp. v City School Dist., 59 N.Y.2d 262, 268). Since plaintiff does not question defendants' jurisdiction to tax, the court erred by concluding that plaintiff could collaterally attack the assessment in a plenary action by asserting equitable estoppel as a ground for relief (see, Samuels v Town of Clarkson, 91 A.D.2d 836, 837).

Since this action was commenced 18 months after the last act asserted as a basis for estoppel, the complaint must also be dismissed because it was time barred (RPTL 702; see, Stabile v Half Hollow Hills Cent. School Dist., 83 A.D.2d 945, 946).

Lastly, the complaint should have been dismissed for failure to state a cause of action. Equitable estoppel cannot be invoked against a local government where the alleged conduct of its employee was unauthorized or unlawful (La Porto v Village of Philmont, 39 N.Y.2d 7, 12; Matter of Wood v Cordello, 91 A.D.2d 1178). An Assessor has no authority unilaterally to correct an assessment after filing the tentative assessment roll (Matter of Niagara Mohawk Power Corp. v Town of Onondaga, 63 N.Y.2d 786, revg on dissent of Boomer, J., 96 A.D.2d 1138). He is authorized only to transmit a verified statement that the roll requires correction due to a clerical error or an unlawful entry (RPTL 552 [a]). Neither claim was made here. Estoppel cannot operate to create a right which never existed (Matter of Wood v Cordello, 91 A.D.2d 1178, 1179, supra).

The fact that the Assessor may have represented to plaintiff that his 1981 assessment would be $550,000 and that, upon filing of a tentative assessment roll containing a greater amount, represented that he would correct the assessment and that plaintiff need not file a grievance does not invoke an equitable estoppel. Such representations, if made, were unauthorized and unlawful.


Summaries of

Westchester Park Associates v. Unmack

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 26, 1986
123 A.D.2d 494 (N.Y. App. Div. 1986)
Case details for

Westchester Park Associates v. Unmack

Case Details

Full title:WESTCHESTER PARK ASSOCIATES, Respondent, v. DAVID UNMACK, as Assessor of…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 26, 1986

Citations

123 A.D.2d 494 (N.Y. App. Div. 1986)

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