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Volume 3 - Opinions of Counsel SBEA No. 92

Opinions of Counsel index

Assessment review, tax certiorari proceeding (settlement) - Real Property Tax Law, Article 7:

A proceeding brought against a town pursuant to Article 7 of the Real Property Tax Law may be settled only upon the approval of the town board. Thus, the board of assessors may not enter into a settlement of an assessment review proceeding without the approval of the town board.

We have received an inquiry which states that a tax assessment review proceeding was brought by certain taxpayers in a town against the board of assessors. An attempt has been made to settle the proceedings by compromise, but whereas the board of assessors is willing to accept the settlement, the town board is not. The question is whether the board of assessors may enter into a settlement of an assessment review proceeding without the permission of the town board.

Subdivision 2 of section 704 of the Real Property Tax Law provides that an assessment review proceeding shall be maintained against the assessors either by naming them individually or by using the official name of the assessing unit.

While an assessment review proceeding may be brought in the name of the assessors, it has been held that the real party in interest is the municipality, and not the assessors. In People ex rel. Beaunit Weaving Mills Corp. v. Shine, 245 App.Div. 790, 280 N.Y.S. 920, it was held that the entry of an order reducing a property assessment based upon a stipulation made by the mayor, the corporation counsel, and the taxpayer, and which stipulation was approved by the board of estimate and apportionment and the common council, was valid despite the opposition of the board of assessors. The Appellate Division affirmed the special term justice who said:

The duty of the assessors and their control over assessments terminates and is fully performed with the final completion and filing of the roll. While necessary parties to any proceeding to review an assessment because of the duties that may be imposed upon them by direction of the court therein and because it involves a review of their official action, the proceeding is not one exclusively against them, as assessors, nor one solely within their control.

It has been held that the assessors of a town exercise no control over litigation affecting their official acts, but rather such litigation is subject to the control of the town board (1 Op.State Compt. 372).

It is a general rule that the governing body of a town has the power to compromise claims in favor of the town or against it (15 A.L.R.2d 1359, § 19; 17 McQuillin, The Law of Municipal Corporations, § 48.18).

Subdivision 4 of section 68 of the Town Law provides that the town board of a town with a population of two hundred thousand or more may compromise any action, proceeding or claim against the town while the town boards of smaller towns may settle such actions where the amount claimed is three hundred dollars or less. In the latter case, where the amount exceeds three hundred dollars, subdivision 1 of such section provides that a town board may compromise or settle such actions or proceedings against the town with the approval of the court in which such action or proceeding is pending.

Thus, while the law may be complicated as to what kind of lawsuit a town may settle, it is clear that it is the town board which acts on such settlement.

Based on the foregoing, it is our opinion that a proceeding brought against a town pursuant to Article 7 of the Real Property Tax Law may be settled only upon the approval of the town board.

March 5, 1974

NOTE:  Construes law prior to L.1995, c.693.

Updated: