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Volume 11 - Opinions of Counsel SBRPS No. 63

Opinions of Counsel index

Assessment review, small claims (correction of erroneous judgment); Correction of errors (correctable errors) (small claims assessment review judgment) - Civil Practice Law and Rules, § 5019; Real Property Tax Law, §§ 550, 733:

Where a judgment in a small claims assessment review proceeding erroneously identifies the respondent assessing unit, correction of such judgment must be sought from the courts. No provision of the Real Property Tax Law, including the correction of errors provisions of title three of Article five of such law, provides a remedy.

We have received an inquiry concerning the possible correction of a small claims assessment review [SCAR] decision (Real Property Tax Law, § 733). A SCAR petition was filed against a parcel on a 2003 village assessment roll in a village which prepares its assessment roll on the basis of the town roll so far as practicable (per RPTL, § 1402(2)), but no such proceeding was commenced against the 2003 town assessment roll. The village’s SCAR hearing was conducted before a hearing officer who also conducted several SCAR proceedings brought against the town in which that village is located. Following a settlement reducing the assessment to a value agreed to by the parties, the hearing officer mistakenly entered the town as the applicable assessing unit on the SCAR form (i.e., RPTL 730). This error was not discovered until after the 2004-05 school taxes were levied against that reduced town assessment, presumably in accordance with the assessment “freeze” provision of section 739 of the RPTL. {1}  The village assessment roll, however, has not yet been changed to reflect the SCAR court order and the taxpayer’s attorney is now seeking its correction. The town assessor, in turn, wishes to correct the town assessment rolls, and seeks our advice as to whether and how he may do so.

To begin, in our opinion, the correction of errors provisions (RPTL, Art. 5, title 3) may not be used to resolve this issue. The correction of errors provisions are an administrative remedy that applies only to the errors defined in section 550 of the RPTL. The factual situation described here does not appear to fit within any of those definitions (see, 9 Op.Counsel SBEA No. 12).

In fact, the provisions of Article 7 of the RPTL, including those applicable to small claims assessment review (i.e., title 1 A), provide a judicial remedy that is distinct from Article 5 and is self-executing. Section 733(5) requires the SCAR hearing officer to transmit his or her decision (which would include a settlement approved by such hearing officer) to the clerk of the court who enters it in accordance with the rules of the court promulgated pursuant to section 737 of the RPTL (i.e., 22 NYCRR § 202.58).

As a judicial proceeding, a SCAR judgment would seemingly be subject to correction pursuant to section 5019(a) of the Civil Practice Law and Rules (see, Katz v. Rodolfo Valantin Salon, etc., 3 Misc.3d 126A, 2004 NY Slip Op. 50312U Appellate Term, 2d Dept., 2004)). In construing an antecedent statute to section 5019, the Court of Appeals stated, “Clerical errors or a mistake in the entry of the judgment or the omission of a right or relief to which a party is entitled as a matter of course may alone be corrected by the trial court through an amendment” (Herpe v. Herpe, 225 N.Y. 323, 327, 122 N.E. 204, 205 (1918); see also, Kiker v. Nassau County, 85 N.Y.2d 879, 649 N.E.2d 1199, 626 N.Y.S.2d 55 (1995); Siegel, New York Practice (3d ed.), § 420; Weinstein, Korn and Miller, New York Civil Practice, par. 5019.04). We defer to a court of competent jurisdiction to determine if the error here meets the statutory criteria and to fashion an appropriate remedy.

October 19, 2004

{1}  The assessor who presented the inquiry indicated that 2004 town and county taxes were also levied against this reduced assessment; presumably, 2003-04 school taxes were also reduced (perhaps through payment of a refund).