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Menucha of Nyack LLC v. Assessor of Town of Clarkstown

May 27, 2021
2021 N.Y. Slip Op. 31918 (N.Y. Sup. Ct. 2021)


Index No: 035206/2020



NYSCEF DOC. NO. 146 To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. HON. ROBERT M. BERLINER, J.S.C. DECISION and ORDER Motion Sequences #2, 3 and 4 The following papers, numbered 31 to 105, were read in connection with Respondents' three separate motions to dismiss this hybrid Article 78 proceeding and plenary/declaratory judgment action:

Notice of Motion/Affidavit(Brotherhood)/Exhibits(1-2)/Affidavit(Conklin)/Exhibits(1-5)/Memorandum of Law in Support


Notice of Motion/Affirmation in Support(Harris)/Exhibits(A-H2)


Notice of Motion/Affirmation in Support(Siebert)/Exhibits(A-H)/Affidavit(Decicco)/Affidavit(Menoutis)/Exhibits(A-F)/Memorandum of Law in Support


Petitioner's Memorandum of Law in Opposition to Respondents' Motions to Dismiss/Affirmation(Child)/Exhibits(A-I)


Reply Affirmation(Wolfson)/Exhibit(1)/Memorandum of Law in Reply


Reply Affirmation(Harris)/Exhibits(A-E)


Reply Affidavit(Mayewski)/Exhibits(A-B)/Memorandum of Law in Reply


Upon reading the foregoing papers it is ORDERED that these motions are resolved as follows:

Factual Background/Procedural History

Petitioner, Menucha of Nyack LLC ("Petitioner") is a single-member domestic limited liability company established in 2006 with a principal place of business at 6 Bush Lane, Spring Valley, New York 10977. Petitioner was formed for the purpose of owning real property for Congregation of New Square (hereinafter "the Congregation"), a religious corporation validly existing pursuant to Article 10 of the Religious Corporations Law of the State of New York, with a principal place of worship at 10 Jefferson Avenue, New Square, New York. The Property in question is located at 601 North Broadway, Upper Nyack, NY, 10960 (hereinafter "the Property"). The Congregation purchased the property as a reclusive and serene residence for Rabbi David Twersky (hereinafter "Rabbi Twersky"), Grand Rebbe of the Hasidic Jewish sect known as "Skver".

There are approximately over 20,000 followers of Rabbi Twersky, approximately 9,000 of which reside in the Village of New Square, where he maintains a residence. As the spiritual leader for this community, Rabbi Twersky's daily activities are innumerable and include officiating at daily morning and evening services; officiating at various religious rites including weddings, funerals, shivahs (visits to the homes of the bereaved), bris (ritual circumcision) ceremonies, engagements, bar mitzvahs, and many more; approximately four hours daily of private meetings with individuals inside and outside of the Skver community; hosting dignitaries, community leaders and public officials; engaging in telephone conversations with those seeking his advice worldwide; and authoring for publication countless books and articles. In addition, Rabbi Twersky frequently appears and lectures at religious and educational events, addresses international conferences, preaches globally, and lectures for large groups of adults and youth. Given these responsibilities, Rabbi Twersky's physician opined that, in his medical opinion, Rabbi Twersky needs a quiet, secure, and secluded location such as the Property, which is away from New Square and allows him to reduce his stress level and rest for his responsibilities during the week and the Sabbath.

On September 17, 2009, Petitioner received a letter from Rockland County indicating delinquent property taxes of $194,271.00 and stating that the County would pursue foreclosure of the Property. In an effort to improve its likelihood of obtaining exempt status for the Property, on December 8, 2009 Petitioner transferred it to its sole member, the Congregation. Upon threat of foreclosure, Petitioner was compelled to pay the 2007, 2008, and 2009 taxes in full pursuant to a Stipulation of Settlement entered December 22, 2009. The Congregation filed an application for tax exemption in 2010, declaring the Property was used by the Congregation as a place of worship and a residence for Rabbi Twersky. The application was denied. On April 20, 2010, upon the advice of counsel expressing concerns regarding the effect that title transfer might have on an ongoing property line dispute involving the Property, as well as concerns about insurance coverage for the Property, Petitioner had the transfer vacated and annulled. As of today, the Property remains deeded to Petitioner. On June 24, 2011, Petitioner entered into an agreement with Rockland County for payment of delinquent taxes and levied taxes between the date of the agreement and June 30, 2013. The maximum amount paid under this agreement was $134,460.00. Between 2015 and 2020, Petitioner filed six Petitions for Review of Tax Assessments on the Property, all of which are still pending. Petitioner has continued to pay property taxes for the Property involuntarily and under protest, as evidenced by, inter alia, Petitioner's persistently grieving assessments on the Property, Petitioner's Article 7 petitions, which specifically state "Petitioner protests payment of said taxes based upon the within claims," and through the filing of this hybrid proceeding. On February 28, 2020, Petitioner filed an application for real property tax exemption under both RPTL §§ 420-a and 462. Petitioner received a letter from Town Office of the Assessor, on April 17, 2020, requesting additional documentation including bylaws, governing documents, tax returns, financial reports, and audits. The Town Office of the Assessor, also asked for registration and current annual filings with the New York State Charities Bureau and any 990 forms filed for the previous year. On May 1, 2020, Town, Office of the Assessor issued a letter denying the exemption, asserting "property not used for exempt purpose." Petitioner filed Form RP-452, Complaint on Real Property Assessment, alleging that the Property is wholly exempt and the assessment was unlawful. On July 1, 2020, the Board issued a letter denying the exemption and stating that the Property "does not qualify under New York State law." On November 4, 2020, Petitioner commenced this hybrid CPLR Article 78 Proceeding and Plenary Action, wherein Petitioner challenges its tax assessment based upon its position that the Property is mandatorily exempt pursuant to RPTL §420-a and RPTL §462 as a parsonage. Petitioner alleges three causes of action in its Verified Complaint: (1) relief pursuant to Article 78: (2) declaratory judgment regarding the exempt status of the Property' and (3) money had and received for tax payments made under protest.

In lieu of interposing an answer, Respondents Assessor of Town of Clarkstown, Board of Assessment Review of Town of Clarkstown and Town of Clarkstown (hereinafter collectively "the Town") move to dismiss the Petition pursuant to CPLR §§3211(a)(2),(5) and (7) as well as 7804(f). In doing so, the Town alleges that Petitioner failed to timely file the instant hybrid Article 78 proceedings and plenary/declaratory judgment action and failed to state a cause of action as to its Article 78, declaratory judgment and money had and received claims.

The Village of Upper Nyack (hereinafter "the Village") and the Nyack Union Free School District (hereinafter "the School District") also move to dismiss the Petition pursuant to CPLR §§3211(a)(2),(5) and (7) as well as 7804(f) on largely the same grounds as those advanced by the Town. As such, the Court's analysis and legal conclusions as to these grounds embrace in all three applications. In addition, the Village seeks dismissal base upon Petitioner's alleged failure to timely file a Notice of Claim prior to commencing the instant hybrid proceeding, as required by CPLR §9802 or state a cause of action for money had and received. The School District also moves to dismiss pursuant to CPLR §3211(a)(1),

Although the Nyack Union Free School District (hereinafter "the School District") explicitly adopted the arguments advanced by the Town, it also moves to dismiss for failing to file a notice of claim under Education Law §3813, which also provides for a one year statute of limitations.

The Court has aggregated the Respondents' separate motions to dismiss and the grounds for dismissal asserted therein for joint analysis and disposition.

Dismissal Pursuant to CPLR §3211(a)(1)

The School District moves to dismiss the Petition based upon documentary evidence pursuant to CPLR §3211(a)(1). Although the School District submitted numerous documents for the Court's review and consideration, it did not identify the specific one(s) it relies upon in moving to dismiss on this ground.

"Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law". Leon v Martinez, 84 NY2d 83, 88 [1994].

Based upon the School District's failure to specifically identify the documents it relies upon in moving for dismissal under CPLR §3211(a)(1), this portion of their application is denied.

Dismissal Pursuant to CPLR §3211(a)(2)

The Town and the Village argue that this Court lacks subject matter jurisdiction based upon Petitioner's alleged failure to comply with statutory requirements to obtain an exemption from taxation for the Property. Specifically, they allege that Petitioner filed an application for an exemption in compliance with the application requirements of Real Property Tax Law §462.

In opposition, Petitioner claims that it is entitled to an exemption under RTPL §420-a and that no such production of evidence is necessary at all under this statute. As a "mandatory class" organization under RPTL§420-a, Petitioner argues that is not required to file a formal application to qualify for exemption.

The New York Court of Appeals has held, "As noted above there is no provision in RPTL 420-a conditioning entitlement to a mandatory property tax exemption upon the filing of an application. The language is clear and unambiguous; the property described therein owned and used as therein provided 'shall be exempt from taxation'...Thus it may reasonably be inferred that the Legislature did not intend to impose any such requirement in respect to mandatory class exemptions. Kahal Bnei Emunim and Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 203 [1991]. Moreover, the Court of Appeals has explained that "[w]hen the taxing authority exceeds its power, the taxpayer . . . . need not meet statutory conditions precedent or follow the procedures set forth in the Real Property Tax Law because the assessment is void." Niagara Mohawk Power Corp. v. City Sch. Dist. of City of Troy, 59 NY2d 262, 269 [1983]. That is precisely what Petitioner alleges that the taxing authority has done by exceeded its power in not granting it a tax exemption under §§420-a or 462. See Buffalo Hebrew Christian Mission, Inc. v. City of Syracuse, 33 A.D.2d 152, 155 [1969].

Given this authority, the Court finds that Petitioner's failure to file an application seeking an exemption is neither a condition precedent nor fatal to its present claims. Accordingly, dismissal on this basis is denied.

The Village also seeks dismissal for Failure to File a Timely Notice of Claim with the Village pursuant to CPLR 9802. The Village offers an affidavit of Village Clerk Carol G. Brotherhood, who searched the Village's and did not find evidence of Petitioner filing a notice of claim prior to commencing this hybrid proceeding. The Village also proffers the affidavit of its Assessor, Cathy L. Conklin, FIAO, who attests that she does not have any record of Petitioner making a grievance application to the Board of Assessment Review or commencing a grievance at the village level. Moreover, the Village alleges that Petitioner filed an application seeking an exemption without specifying with whom that application was filed and that such application was filed only with the Town and not the Village. According to the Village, the plain language of RPTL §462 requires a property owner to make an application to the assessor for an exemption prior to commencing a proceeding challenging its tax exempt status.

The School District offers affidavits from Linda DeCicco, District Clerk for the Board of Education of the Nyack School District, who also attests to not receiving any notice of claim relating to the claims Petitioners asserts and relief requested herein. The School District also submits that affidavit of Gloria Mehoutis, its School Business Executive, wherein she explains her responsibilities and the School District's use of a tax certiorari reserve fund based upon Notice(s) of Claim received challenging tax assessments. Ms. Mehoutis states that she received a Complaint on Real Property Assessment for tax years 2015, 2016, 2017, 2018, and 2019 contesting same based upon overvaluation rather than exemption status grounds and that Petitioners now seek an amount wildly in excess of the School District's tax certiorari reserve fund and alleges prejudice attributable to Petitioner seeking a return of its tax payments on any ground other than overvaluation herein.

"When the taxing authority exceeds its power, however, the taxpayer may challenge its levy collaterally in a plenary action. It need not meet statutory conditions precedent or follow the procedures set forth in the Real Property Tax Law because the assessment is void. In such case, a legal issue is critical, the power to tax not the facts underlying the tax, and thus there is little need for the taxing authority to investigate or to attempt to adjust the claim. This jurisdictional issue, as in most legal proceedings, may be raised collaterally without regard to the normal procedures or the necessity of complying with conditions precedent" Niagara Mohawk Power Corp. v City School Dist. of City of Troy, 59 NY2d 262, 269 [1983] [internal citations omitted].

"Taxes assessed and collected in violation of the constitutional authority granted the school district or otherwise void for want of jurisdiction may be recovered by the taxpayer in a plenary action for moneys had and received, but a complaint alleging the involuntary payment of a void tax may not be dismissed for insufficiency because of the taxpayer's failure to plead compliance with the provisions of subdivision 1 of section 3813 of the Education Law" Niagara Mohawk Power Corp. v City School Dist. of City of Troy, 59 NY2d 262, 267-68 [1983] [internal citations omitted]. "But because an action for the return of a void tax raises only a legal issue for the court, there is no need for a prior notice of claim to allow for investigation, adjustment or administrative action. Indeed, it is inconsistent to insist that the taxpayer pursue an administrative remedy, thereby impliedly recognizing the jurisdiction of the district, at the same time it challenges the legality of the district's action (see Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 519-520). The only purpose section 3813 can serve in an action such as this is to give the district notice of a claim of illegality and a potential lawsuit, and that is accomplished by the requirement that the taxpayer's payment must be involuntary" Niagara Mohawk Power Corp. v City School Dist. of City of Troy, 59 NY2d 262, 271 [1983]

This binding precedent is dispositive of the School District's application seeking to dismiss for failure to comply with Education Law §3813 and mandates denial of its dismissal application on this basis. In addition, Petitioner submits adequate proof that it remitted tax payments under protest so as to render same involuntary, as corroborated by its 2015-2019 RPTL 524 grievances.

As to CPLR 9802 "....the purpose behind statutes such as CPLR 9802 is to give the municipality early notice of a claim so that investigation can be promptly made and evidence relating to the claim can be preserved" Fourth Ocean Putnam Corp. v Interstate Wrecking Co., Inc., 66 NY2d 38, 42 [1985]. Under the particular circumstances of this hybrid proceeding, the Court finds that the 2010 exemption denial, Petitioner's 2015-2019 RPTL 524 grievances collectively provided the Village sufficient notice so as to satisfy the purpose behind CPLR 9802. Accordingly, dismissal on that basis is unwarranted.

Dismissal Pursuant to CPLR §3211(a)(5) as Untimely

The Town of Clarkstown moves to dismiss the Petition's First and Second causes of action, (Article 78 and declaratory judgment, respectively), as untimely, arguing that the Town finalizes its assessment roll of July 1 of each year and filed the Final Assessment Roll on July 1 of each year from 2015 through 2020. They argue that since Petitioner commenced this hybrid proceeding on November 4, 2020, its first and second causes of action for tax years 2015 through 2019 are untimely and subject to dismissal on this ground. As to the 2020 tax year, the Town argues that Article 78 challenging the 2020 assessment roll was finalized on July 1, 2020 and therefore the four month period in which to commence a timely Article 78 proceeding expired on October 29, 2020. Given this operative date, the Town highlights that Petitioner commenced this hybrid proceeding on November 4, 2020, five days thereafter, and therefore seeks to dismiss Petitioner's first and second causes of action as time-barred.

In opposing this relief, Petitioner claims that its 2020 tax year claim is timely based upon Governor Cuomo's Executive Orders issued in response to COVID-19, that it knowingly and fully relied upon Executive Orders 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.60, and 202.67, which tolled the applicable statute of limitations from March 20, 2020 to November 3, 2020, such that it began running on November 4, 2021 and expired on March 4, 2021.

As to the 2015-2019 tax years that Respondents claim are time-barred, the Court declines to engage in a hypertechnical analysis of pleadings that would result in the inability of a taxpayer to seek review of a tax assessment. Indeed, the Court of Appeals has emphasized that the technicalities of pleadings should not defeat review of a tax assessment. Matter of Great E. Mall v. Condon, 36 NY2d 544, 548 [1975]; Consolidated Edison Company of New York v. SBEA 60 AD2d 356, 359 [3d Dep't 1978]["[w]hile the taxpayer did not directly specify inequality...on an over-all basis its complaints did make such factual allegations as to have properly brought the question of inequality as it might relate to proof of 'overvaluation' and improper equalization rates to the attention of the board."); Carhart v. Vill. of Hamilton, 190 AD2d 973, 974-75[1993)][notice of claim under General Municipal Law was sufficient when "additional causes of action in plaintiffs' complaint were at least indirectly referred to in their notice of claim and, therefore, the nature of plaintiffs' claims was not substantially or substantively changed so as warrant dismissal of the complaint"]. Indeed, here, the petitions posited that the tax assessment could be either incorrect or unlawful, thus putting all Respondents on notice of both of those possibilities.

As to the third cause of action for money had a received, the Court is unswayed by the Town's arguments linking the timeliness of this claim to Petitioner's Article 78 claims, as the two rise or fall independent of the other."To be sure, a taxpayer may recover taxes paid pursuant to a wrongful assessment under that theory and, because such a claim is premised upon a contractual obligation or liability, express or implied in law or fact, it is generally governed by a six-year statute of limitations." Reg'l Econ. Cmty. Action Program, Inc. v. Enlarged City Sch. Dist. of Middletown, 18 N.Y.3d 474, 479 [2012][internal quotations omitted].

Petitioner commenced this hybrid proceeding on November 4, 2020, thereby rendering its money had and received timely for its 2015, 2016, 2017, 2018 and 2019 payments.

Dismissal Pursuant to CPLR §3211(a)(7)

Although the Town acknowledges that Petitioner filed grievance complaints under RPTL 524 in 2015 through 2019, it failed to assert a claim that the property is wholly exempt from taxation. The Town argues that this failure precludes Petitioner from challenge the assessment on valuation grounds. The Town also seeks to dismiss Petitioner's RPTL §420-a claim based upon its alleged failure to obtain a special use permit to use the Property as a place of worship. The Town explains that the Property is situated in an R-2 Zoning District, which allows a property to be used as a house of worship only if a special use permit is sought and granted. The certificate of occupancy provides doe its use as a single-family residence and there is no record of a special use permit application.

"However, where the challenge is that the taxing authority has exceeded its power, a plenary action may be brought collaterally attacking the assessment. The procedures of article 7 need not be followed because the assessment is void (Niagara Mohawk Power Corp. v. City School Dist., 59 N.Y.2d 262, 269, 464 N.Y.S.2d 449, 451 N.E.2d 207, supra). In Hewlett Assocs. v. City of New York, 57 N.Y.2d 356, 363, 456 N.Y.S.2d 704, 442 N.E.2d 1215, we observed that '[i]t is well recognized that where a challenge is made to the taxing authority's jurisdiction over the subject property, the settled rule that reviews of a tax assessment may be obtained only by way of the statutory certiorari procedure is not applicable'. We noted in Dun & Bradstreet v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, supra, that '[i]f taxing officers act without jurisdiction, their acts are illegal and void. In such a case, certiorari is not an adequate remedy even if a proper one.' The 'void' assessment may be challenged in an article 78 proceeding or in a declaratory judgment action" Kahal Bnei Emunim and Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 204-05 [1991]

As to the Village's claim that Petitioner failed to state of cause of action for money had and received "[t]he essential elements of a cause of action for money had and received are (1) the defendant received money belonging to the plaintiff, (2) the defendant benefited from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money" Lebovits v Bassman, 120 AD3d 1198, 1199 [2d Dept 2014].

The Petition states that Respondents received monies from Petitioner when it paid taxes attributable to the Property, benefited from the receipt of such sums and, as germane to the Court's analysis herein, under principles of equity and good conscience, should not be permitted to keep taxes assessed to a Property that, in Petitioner's view, is statutorily exempt under RPTL §§420-a and 468. These assertions collectively state a cause of action for money had and received. Accordingly, the Village's dismissal application on this basis is denied.

Based upon the foregoing, it is

ORDERED that Respondents' motions to dismiss are denied in their entirety; and it is further

ORDERED that Respondents file Answers within thirty(30) days of the date hereof.

The foregoing constitutes the Decision and Order of the Court. Dated: New City, New York

May 27, 2021



Counsel of Record via NYSCEF

Summaries of

Menucha of Nyack LLC v. Assessor of Town of Clarkstown

May 27, 2021
2021 N.Y. Slip Op. 31918 (N.Y. Sup. Ct. 2021)
Case details for

Menucha of Nyack LLC v. Assessor of Town of Clarkstown

Case Details



Date published: May 27, 2021


2021 N.Y. Slip Op. 31918 (N.Y. Sup. Ct. 2021)