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Volume 10 - Opinions of Counsel SBRPS No. 123

Opinions of Counsel index

Assessment review (form of complaint) (photocopies and facsimiles) (electronic signatures); (agency) (designation of representative) - Real Property Tax Law, § 524; State Technology Law, § 105:

A property owner may designate a representative to appear before the board of assessment review on his or her behalf by completing the relevant portion of the complaint form (RP-524) or using a separate form satisfying the statutory criteria.

A board of assessment review should accept a photocopy or facsimile copy of a complaint form unless there is evidence to indicate that the proffered copy is fraudulent.

An assessing unit may choose to accept RP-524 forms which are “signed” with an electronic signature if it chooses to do so and the “signature” satisfies the Office of Technology rule standards.

Our opinion has been requested concerning real property tax assessment complaint forms (Real Property Tax Law, § 524). The first question is if the power of attorney used by a particular representative is legally sufficient for purposes of establishing representation for grievance purposes. Assuming a complaint form is sufficient, the next question is if the assessor or board of assessment review may accept a photocopy or facsimile copy of the grievance form (RP-524) or if only the original may be accepted. Lastly, we are asked if it is acceptable for the RP-524 to be “signed” with an electronic signature by the taxpayer’s representative.

Designation of representative

With the exception of New York City, “a complaint with respect to an assessment shall be on a form prescribed by the state board” (RPTL, § 524(3)), that is, form RP-524. That same subdivision also provides:

Such statement must be made by the person whose property is assessed, or by some person authorized in writing by the complainant or his officer or agent to make such statement who has knowledge of the facts stated therein. Such written authorization must be made a part of such statement and bear a date within the same calendar year during which the complaint is filed.

The RP-524 form includes a Part Four on which the complainant or the complainant’s officer may designate a representative to appear on the complainant’s behalf before the board of assessment review.

Based on several judicial decisions, in our opinion, the designation of representation also may be made on another document that complies with the statutory requirements. The courts have held improperly dated authorizations are technical defects which may be corrected and given retroactive legal effect (Astoria Federal Savings & Loan Assn. v. Board of Assessors, 212 A.D.2d 600, 212 N.Y.S.2d 551 (2d Dept. 1995)). More recently, the Court of Appeals reiterated its earlier opinion in Great Eastern Mall v. Condon, 36 N.Y.2d 544, 330 N.E.2d 628, 369 N.Y.S.2d 672 (1975), {1} in which it held that assessment complaints should not be dismissed by technical infirmities (Miller v. Board of Assessors, 91 N.Y.2d 82, 689 N.E.2d 906, 666 N.Y.S.2d 1012 (1997)).

The limited power of attorney submitted here for our review states that the complainant designates the named firm to represent such complainant “in all matters of property taxes and tax assessments before any governmental officials and/or any other authority having jurisdiction regarding the taxes and/or assessment levied on the following described property” [followed by space for the property description, the date and the complainant’s signature]. This form, if properly completed, seems sufficient for purposes of administrative review. {2}

Photocopies and facsimile copies

Strictly speaking, photocopied or faxed complaints are not “signed.” A signature is a mark placed upon an instrument or writing “with intent to execute or authenticate such instrument or writing” (General Construction Law, § 46). In the case of photocopies or faxed copies, a mark may have been placed on the original with the requisite intent, but no such mark was placed upon the copy.

So, technically, a board of assessment review might consider a photocopied or faxed complaint (and/or designation of representation) to be defective, but, if so, in our opinion, the complainant or representative should be given an opportunity to cure the defect (10 Op.Counsel SBRPS No. 80). Moreover, given the tenor of the above-cited cases, it would seem unlikely that a photocopied or faxed designation of representation would be considered to be a jurisdictional defect. {3}  So as to avoid unnecessary litigation, therefore, we recommend that the board of assessment review accept photocopied or faxed forms unless, in a specific instance, there is evidence to indicate that the proffered copy is fraudulent. {4}

Electronic signatures

Finally, there is new law as to electronic signatures. {5}  The Electronic Signatures and Records Act [ESRA], or Article one of the new State Technology Law (added L.1999, c.4), authorizes local governments (and State agencies), in accordance with the rules of the State Office of Technology (9 NYCRR 540), {6} to accept information by use of electronic means (State Technology Law, § 105(1)).

The law does not require the use of electronic records or signatures (State Technology Law, § 109; 9 NYCRR 540.5(b)). {7}  The use of electronic signatures must meet certain criteria established by the Office of Technology. Among these criteria, the electronic signature must be considered “unique to the person using it” (9 NYCRR 540.4(a)(1)), be “capable of verification” (540.4(a)(2)), be “under the sole control of the person using it” (540.4(a)(3)), be “attached to or associated with data in such a manner that authenticates the attachment of the signature to particular data and the integrity of the data transmitted” (540.4(a)(4)), and be “intended by the party using it to have the same force and effect as the use of a signature affixed by hand” (540.4(a)(5)). So, the assessing unit may choose to accept RP-524 forms which are “signed” with an electronic signature if it chooses to do so and the “signature” satisfies the Office of Technology rule standards.

December 28, 2000

{1}  In Great Eastern Mall, the Court adopted “a two-pronged test more consonant with modern rational thinking toward pleading and procedure: First, did the entity which is the actual respondent, if not the formally named respondent, receive adequate notice of the commencement of the proceeding? Second, would any substantial right of this entity be prejudiced by disregarding the defect or irregularity?” (36 N.Y.2d at 548, 330 N.E.2d at 631, 369 N.Y.S.2d at 675-76).

{2}  It may also be sufficient for purposes of small claims assessment review (Cipollone v. City of White Plains, 181 A.D.2d 887, 581 N.Y.S.2d 421 (2d Dept. 1992)). If the named representative is not a law firm, however, it may not be sufficient for tax certiorari purposes (Property Valuation Analysts v. Williams, 164 A.D.2d 131, 563 N.Y.S.2d 545 (3d Dept. 1990)).

{3}  Note that when “any business . . . or member of a profession . . . in the regular course of business or activity has made, kept or recorded any writing, entry, print or representation and in the regular course of business has recorded, copied, or reproduced it by any process, including reproduction, which accurately reproduces or forms a durable medium for reproducing the original, such reproduction, when satisfactorily identified, is as admissible in evidence as the original . . .” (Civil Practice Law and Rules, Rule 4539; see also, People v. Flores, 138 A.D.2d 512, 526 N.Y.S.2d 125 (2d Dept. 1988)).

{4}  Note also that if a complaint form is accepted without giving notice of an alleged defect therein, a court reviewing the facts would likely deem the defect to have been waived (9 Op.Counsel SBEA No. 105).

{5}  A “digital signature” is one type of electronic signature (State Technology Law, § 102(3)).

{6}  The rules and other information pertaining to ESRA are available on the Office of Technology’s Internet website. Its address is:

{7}  This is similar to Federal law. The Electronic Signatures in Global and National Commerce Act (P.L. 106-229) authorizes but does not mandate the use of electronic signatures.