State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 7, 2016 521242 

________________________________

In the Matter of GLENS FALLS

CITY SCHOOL DISTRICT et al.,

AppellantsRespondents,

v

MEMORANDUM AND ORDER

CITY OF GLENS FALLS et al.,

RespondentsAppellants.

________________________________

Calendar Date: November 23, 2015

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

__________

Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Karla

Williams Buettner of counsel), for appellants-respondents.

Newell & Klingebiel, Glens Falls (Karen Judd of counsel),

for City of Glens Falls, respondent-appellant.

Muller, Mannix & Reichenbach, PLLC, Glens Falls (Daniel J.

Mannix of counsel), for Glens Falls Common School District,

respondent-appellant.

McNamee, Lochner, Titus & Williams, PC, Albany (John J.

Privitera of counsel), for Finch Paper, LLC, respondentappellant.

__________

McCarthy, J.

Cross appeal from a judgment of the Supreme Court

(Krogmann, J.), entered August 12, 2014 in Warren County, which,

in a combined proceeding pursuant to CPLR article 78 and action
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for declaratory judgment, among other things, granted

respondents' motions to dismiss the petition/complaint.

Respondent City of Glens Falls is divided into two school

districts – petitioner Glens Falls City School District

(hereinafter petitioner School District) and respondent Glens

Falls Common School District. Respondent Finch Paper LLC owns,

among other things, two adjacent parcels of real property over

which certain buildings and structures span. Parcel 1 is located

within petitioner School District's taxing district, and parcel 2

is located within the taxing district of the Glens Falls Common

School District. In 2005, respondent City of Glens Falls

Assessor conducted a citywide revaluation and assessment. On

July 1, 2012, the Assessor filed the final tax roll for the City

and listed the value of parcel 1 as $7,550,000 and the value of

parcel 2 as $25,149,700. Thereafter, petitioners commenced this

combined CPLR article 78 proceeding and declaratory judgment

action challenging the valuation and allocation of the assessed

value of parcels 1 and 2. Respondents subsequently moved to

dismiss the petition/complaint. Supreme Court granted

respondents' motions to dismiss on the basis of timeliness. 

Petitioners now appeal, and respondents cross appeal.1

We affirm on the basis that a CPLR article 78 proceeding is

an improper forum for petitioners' contentions. A challenge to a

property assessment alleging illegality, overvaluation or

inequality with respect to assessments must be brought pursuant

to RPTL article 7 (see Kahal Bnei Emunim & Talmud Torah Bnei

Simon Israel v Town of Fallsburg, 78 NY2d 194, 204 [1991]). 

However, a CPLR article 78 proceeding is appropriate where a

petitioner raises a challenge as to the taxing authority's

1 Given that respondents were not aggrieved by Supreme

Court's dismissal of the petition, we dismiss their cross appeals

(see Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie,

126 AD3d 1094, 1095 n 2 [2015]; Matter of Covel v Town of Peru,

123 AD3d 1244, 1245 n [2014]). Nonetheless, we consider

respondents' arguments as alternative grounds for affirmance (see

Matter of Thornton v Saugerties Cent. Sch. Dist., 121 AD3d 1253,

1254 n 1 [2014]).
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jurisdiction, the method utilized in the assessment or the

legality of the tax itself (see Turtle Is. Trust v County of

Clinton, 125 AD3d 1245, 1246 [2015], lv denied ___ NY3d ___ [Nov.

23, 2015]; Matter of Adams v Schoenstadt, 57 AD3d 1073, 1074

[2008], lv dismissed 12 NY3d 769 [2009]).

As to the methodology exception, a CPLR article 78

proceeding is proper only if the challenge is directed at "a

policy or practice" governing assessments, rather than discrete

valuation determinations (Matter of General Elec. Co. v MacIsaac,

292 AD2d 689, 691 [2002]; see Matter of Adams v Schoenstadt, 57

AD3d at 1074). Mere allegations that the attack is on a

methodology rather than on individual determinations are

insufficient to relieve a petitioner of its obligation to pursue

relief pursuant to RPTL article 7 (see Matter of Adams v

Schoenstadt, 57 AD3d at 1075; Matter of Board of Mgrs. of Greens

of N. Hills Condominium v Board of Assessors of County of Nassau,

202 AD2d 417, 419-420 [1994], lv denied 83 NY2d 757 [1994]). 

Even granting petitioners' allegations a liberal

construction and giving them the benefit of every reasonable

inference, petitioners fail to challenge any assessment

methodology. While petitioners factually allege that discrete

determinations regarding the assessments of parcels 1 and 2 were

erroneous, they fail to identify a particular methodological

approach – that is, any rule applied as a policy or practice in

assessments generally – that they allege was improper.2 Given

this failure to identify and challenge any methodological

approach to the assessments, dismissal of the petition is

required (see Matter of Adams v Schoenstadt, 57 AD3d at

1074-1075; see generally Matter of Board of Mgrs. of Greens of N.

Hills Condominium v Board of Assessors of County of Nassau, 202

AD2d at 420). Further considering that petitioners' declaratory

judgment cause of action – seeking a declaration of a specific

assessment valuation of the relevant parcels – was entirely

dependent on the success of their CPLR article 78 challenge to

the lawfulness of the existing assessment, that cause of action

2 Petitioners concede, on this appeal, that the assessment

methodology that was actually employed "is an enigma" to them. 
-4- 521242 

does not survive petitioners' failure to state a methodological

challenge. This determination renders the issues of the

timeliness of the petition and petitioners' standing academic.

Peters, P.J. and Clark, J., concur.

Egan Jr., J. (concurring).

Given the nature of petitioners' challenge, we agree that a

CPLR article 78 proceeding is an improper forum and, therefore,

Supreme Court properly granted respondents' motions to dismiss

the petition/complaint. That said, we write separately to

express our belief that, as a threshold matter, petitioners lack

standing to challenge the valuation and assessment imposed upon

the subject parcels by respondent City of Glens Falls Assessor in

the first instance. Simply put, a school district is neither a

taxpayer nor a property owner; therefore, it is precluded from

challenging the taxable value of real property (see generally

Board of Educ. of Goshen Cent. School Dist. v Town of Wallkill

Indus. Dev. Agency, 222 AD2d 475, 476 [1995], lv denied 87 NY2d

811 [1996]). Indeed, "a school district is required to base the

tax it lev[ies] upon the assessment rolls of the municipalities

within its boundaries; it is without power to question the

assessments or the method of arriving at the assessed valuation"

(Xerox Corp. v Town of Webster, 131 Misc 2d 817, 820 [Sup Ct,

Monroe County 1986]; see RPTL 1302; see also Matter of District

Three IUE Hous. Dev. Fund Corp. v Buckley, 74 Misc 2d 1078, 1080-

1081 [Sup Ct, Rensselaer County 1973]). While a school district

undeniably has an interest in the valuation and assessment

figures imposed by the relevant assessor and may intervene and

join in the defense of a tax certiorari proceeding brought by a

property owner challenging its tax assessment (see RPTL 712;

Matter of Niagara Mohawk Power Corp. v Town of Moreau Assessor,

15 AD3d 759, 760 [2005]), it enjoys no standing to initiate its

own proceeding to challenge an assessment. For that reason, we

would affirm the Supreme Court's judgment but on a different

ground.

Devine, J., concurs.
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ORDERED that the judgment is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court