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Volume 8 - Opinions of Counsel SBEA No. 50

Opinions of Counsel index

Assessment review (tax certiorari proceeding) (settlement over town board opposition) - CPLR, Rule 5015; Real Property Tax Law, §§ 704, 720; Town Law, § 68:

When a town assessor purports to settle an Article 7 proceeding against the town board’s express opposition, the town board may obtain relief from the order of settlement by making a motion to vacate.

We have been asked whether the town assessor has authority to settle an Article 7 proceeding and, if not, what remedies are available to the Town after court approval of the assessor’s “agreement”.

The Town Law provides that “[t]he town board of any town may compromise or settle an action or proceeding against the town” (§68(1 )(a); emphasis added). While the Real Property Tax Law provides that an assessment review proceeding shall be maintained against the assessor individually (§704(2)), the courts have held that the real party in interest is the municipality (People ex rel. Beaunit Weaving Mills Corp. v. Shine, n.o.r. (S.Ct., Albany Co., January, 1935), aff’d 245 App.Div. 790, 280 N.Y.S. 920 (3d Dept., 1935)). Relying upon these authorities, we have previously stated 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 (3 Op.Counsel SBEA No. 92).

In the instant case, prior to any settlement negotiations, the Town Board, by resolution, expressed its opposition to settlement of the proceeding brought by the property owner. This opposition was expressed again following the pretrial conference, attended by the Town’s Assessor, Attorney and Supervisor, which resulted in the settlement. That being the case, we assume that none of those three officials was a “designee” of the Town Board, authorized to settle this proceeding (see, Town Law, §68(2)). If not designees, they were without authority to settle this proceeding.

As for remedies, the Town may obtain relief from the order of settlement by making a motion to vacate under Rule 5015 of the Civil Practice Law and Rules. While these facts do not fit neatly into any of the five grounds listed in that Rule, the list “is not preemptive. The court has inherent discretionary power to vacate its judgments and orders for good cause shown, not limited by theCPLR 5015(a) list” (Siegel, New York Practice, 567).

For example, in Stanford Associates v. Board of Assessors of Town of Niskayuna, 67 Misc.2d 477, 324 N.Y.S.2d 453 (S.Ct., Schenectady Co., 1971) aff’d 39 A.D.2d 800, 332 N.Y.S.2d 386 (3dDept, 1972), mot. lv. to app.den., 31 N.Y.2d 643 (1972), an order of settlement was set aside when a school district’s motion to vacate first made the court aware of the district’s previously expressed opposition to any settlement. As grounds for the vacatur, the trial court said that “[h]ad this Court been apprised of the School District’s position, the order would not have been signed” (324 N.Y.S.2d, at 454). The Town Board’s opposition to any settlement of the proceeding in question should qualify as good cause, under the rationale of this case.

April 6, 1983

Updated: