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
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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