SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1084 

CA 14-00624 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ. 

 

IN THE MATTER OF DIANA SACHS AYLWARD, JOHN C. 

CARBONARA, GRETCHEN CERCONE, 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

ASSESSOR, CITY OF BUFFALO, BOARD OF ASSESSMENT 

REVIEW FOR CITY OF BUFFALO, COUNTY OF ERIE AND 

STATE OF NEW YORK, 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 June 10, 2013 in proceedings pursuant to

RPTL article 7. The order, among other things, granted respondents’

motion to, inter alia, inspect the interior of petitioners’ homes. 

It is hereby ORDERED that the order so appealed from is 

unanimously modified on the law by directing that the fourth and fifth

ordering paragraphs shall apply only to exterior inspections, and as

modified the order is affirmed without costs in accordance with the

following Memorandum: Petitioners commenced these proceedings

pursuant to RPTL article 7 seeking reductions in the value of the

assessments of their respective properties. On a prior appeal, we

reversed orders denying petitioners’ motions to preclude respondents

from conducting interior inspections of their homes and remitted the

matter for further proceedings (Matter of Aylward v City of Buffalo,

101 AD3d 1743). Petitioners now appeal from an order granting

respondents’ motion pursuant to CPLR 408, 3120, and 3126 for, inter

alia, interior and exterior inspections of the subject properties and

document discovery. We note at the outset that, although petitioners’

notice of appeal is from the order in its entirety, they do not raise

in their brief any contentions concerning that part of the order

granting exterior inspections. We therefore deem any issues with

respect thereto abandoned (see Ciesinski v Town of Aurora, 202 AD2d

984, 984). 
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CA 14-00624 

We agree with petitioners that Supreme Court erred in granting

respondents’ discovery requests insofar as they sought interior

inspections of petitioners’ homes and in ordering preclusion if

petitioners refused to permit interior inspections. We therefore

modify the order accordingly. “Because discovery tends to prolong a

case, and is therefore inconsistent with the summary nature of a

special proceeding, discovery is granted only where it is demonstrated

that there is need for such relief” (Matter of Town of Pleasant Val. v

New York State Bd. of Real Prop. Servs., 253 AD2d 8, 15). Here, in

order for “respondents to establish their entitlement to conduct . . .

interior inspection[s] of the petitioner[s’] home[s] for purposes of

appraisal, in the absence of the petitioner[s’] consent, . . .

respondents bore the burden of demonstrating that [each] ‘particular

inspection [was] reasonable’ ” (Matter of Jacobowitz v Board of

Assessors for Town of Cornwall, 121 AD3d 294, 301), and “ ‘that

interior inspections were necessary to prepare their defense’ ” (id.

at 304, quoting Aylward, 101 AD3d at 1744). We agree with petitioners

that respondents failed to make the required showing that interior

inspections were reasonable and necessary to prepare their defense

(see id.; cf. Matter of Wendy’s Rests., LLC v Assessor, Town of

Henrietta, 74 AD3d 1916, 1917). Respondents submitted an affidavit

from an expert appraiser who averred that there “is not an adequate

substitute for [interior] inspection available to produce a

Self-Contained Appraisal Report” as required for trial purposes in tax

certiorari litigation. The expert also averred, however, that an

interior inspection of a property being appraised “is not always

required” pursuant to the Uniform Standards of Professional Appraisal

Practice. Furthermore, neither interior inspections nor a “selfcontained appraisal report” is required by statute or court rule (see

CPLR 3140; 22 NYCRR 202.59). Thus, we conclude that the appraiser’s

general averments failed to set forth “personal knowledge of the facts

and circumstances indicating that access to the interior of the

[homes] was necessary to accurately arrive at the fair market value

thereof” (Jacobowitz, 121 AD3d at 304).

In addition to establishing that their request for interior

inspections was reasonable and necessary to prepare their defense,

respondents were also required to show that their interest in

conducting them outweighed petitioners’ Fourth Amendment privacy

rights (see id. at 306-307; Camara v Municipal Court of City & County

of San Francisco, 387 US 523, 536-537). In determining whether

respondents made such a showing, the court was required to “balanc[e]

respondents’ need for interior inspections [of the homes] against the

invasion of petitioners’ privacy interests that such inspections would

entail” (Aylward, 101 AD3d at 1744; see generally Kavanagh v Ogden

Allied Maintenance Corp., 92 NY2d 952, 954). Upon our review of the

record, we conclude that respondents failed to establish that their

interest in interior inspections outweighed petitioners’ Fourth

Amendment privacy rights (see Jacobowitz, 121 AD3d at 307). 

Petitioners further contend that the court abused its discretion

in granting document discovery regarding capital improvements and

construction costs since the time of purchase, contending that such

information is too remote and irrelevant to value at the time of
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CA 14-00624 

assessment. Petitioners asserted a different contention during oral

argument of the motion and, thus, their present contention that the

request is overly broad is improperly raised for the first time on

appeal (see Ciesinski, 202 AD2d at 985).

Finally, we reject petitioners’ contention that the court abused

its discretion in ordering them to provide prior surveys of the

subject properties. Contrary to petitioners’ contention, they failed

to establish that the surveys had previously been provided, which is

the sole ground raised by petitioners in opposition to respondents’

request.

Entered: February 6, 2015 Frances E. Cafarell

Clerk of the Court