State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 18, 2015 519571 

________________________________

BENJAMIN STROUSE,

Appellant,

v MEMORANDUM AND ORDER

TOWN OF AUSTERLITZ,

Respondent.

________________________________

Calendar Date: May 1, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Benjamin Strouse, Austerlitz, appellant pro se.

Tal Rappleyea, Valatie, for respondent.

__________

Egan Jr., J.

Appeal from an order of the Supreme Court (Nichols, J.),

entered December 13, 2013 in Columbia County, which, among other

things, granted defendant's cross motion to dismiss the

complaint.

In 2008, defendant adopted various resolutions pursuant to

Town Law §§ 200 and 202 authorizing substantial improvements to

portions of Harrington Drive and Partridge Drive in the Town of

Austerlitz, Columbia County and creating a special assessment

district to fund such improvements. Plaintiff is the owner of

three parcels of land located within a particular subdivision in

the Town, including a landlocked and unimproved piece of property

identified on the relevant tax map as Lot 28. Although Lot 28

does not front or abut either Harrington Drive or Partridge

Drive, the tax map reflects that this parcel is subject to an

existing – albeit apparently undeveloped – right-of-way that

provides Lot 28 with legal access to Harrington Drive. For this
-2- 519571 

reason, defendant included Lot 28 in the list of parcels

benefitted by the planned improvements and subject to the special

assessment.

According to plaintiff, although he "unwittingly" paid the

first property tax bill that he received containing the $3,700

special assessment, it was not until he received his 2010

property tax bill in December 2009 that he first learned of the

special assessment. Plaintiff's informal efforts to persuade

defendant to remove Lot 28 from the special assessment district

proved to be unsuccessful, prompting him to commence this action

in September 2011 seeking similar relief. Defendant answered and

raised various affirmative defenses, including lack of subject

matter jurisdiction and the statute of limitations. Plaintiff

thereafter moved to compel certain discovery, and defendant

cross-moved to dismiss the complaint. Supreme Court, among other

things, granted defendant's cross motion, prompting this appeal.

Plaintiff primarily contends that Supreme Court erred in

failing to address his due process and equal protection claims

i.e., that defendant failed to provide him with adequate notice

relative to the creation of the special assessment district and

the corresponding assessment imposed thereunder and, further,

selectively included Lot 28 within such district. Plaintiff's

constitutional claims, however, were raised for the first time in

his reply affidavit. Accordingly, these issues are not properly

before us (see Matter of Johnson Elec. Constr. Corp. v New York

State Dept. of Transp., 124 AD3d 1199, 1200 [2015]; Jackson v

Vatter, 121 AD3d 1588, 1589 [2014]; 10 Cardinal Lane, LLC v

N.K.T. Land Acquisitions, Inc., 117 AD3d 1133, 1136 n 2 [2014];

Schissler v Athens Assoc., 19 AD3d 979, 980 [2005]).

To the extent that plaintiff contends that Supreme Court

otherwise erred in granting defendant's cross motion to dismiss,

we disagree. "Special assessments enjoy a presumption of

validity . . . requiring [the petitioning property owner] to show

by affirmative proof that [he or she has] not benefited from the

improvement or that it is nonassessable in the first instance"

(Matter of Batti v Town of Austerlitz, 71 AD3d 1260, 1261 [2010]

[internal quotation marks and citation omitted]). Here, although

the parties debate whether Lot 28 was properly included in the
-3- 519571 

special assessment district in the first instance, the merits of

their respective arguments need not detain us. Plaintiff's

recourse in this regard was to timely commence a CPLR article 78

proceeding to challenge the creation of the special assessment

district and/or the imposition of the assessment itself. This

action – commenced in 2011 to challenge resolutions adopted by

defendant in 2008 – is neither timely (see CPLR 217 [1]) nor in

the proper form. Accordingly, defendant's cross motion to

dismiss the complaint was properly granted.

McCarthy, J.P., Lynch and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court