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Volume 9 - Opinions of Counsel SBEA No. 27

Opinions of Counsel index

Assessment review, small claims (award of costs to petitioner) - Real Property Tax Law, § 733:

Award of costs to a small claims assessment review petitioner whose petition is dismissed on jurisdictional grounds is void and cannot be enforced against the respondent assessing unit.

A petitioner for small claims assessment review was denied review on the ground that the eligibility requirements provided in section 730 of the Real Property Tax Law were not satisfied. The hearing officer nonetheless awarded costs to the petitioner in the amount of $25.00, which equals the amount of the small claims filing fee paid to the county clerk (§730(3)). The county clerk and assessing unit have refused to return the fee to the petitioner.

The authority for a hearing officer to award costs to a petitioner is included in RPTL, section 733(3), which provides, in pertinent part:

If the assessment is reduced by an amount equal to or greater than half the reduction sought, the hearing officer shall award the petitioner costs against the respondent assessing unit in an amount equal to the fee paid by the petitioner to file the petition for review. If the assessment is reduced by an amount less than half of the reduction sought, the hearing officer may award the petitioner costs against the respondent assessing unit in an amount not to exceed the fee paid by the petitioner to file the petition for review.(emphasis added)

As is evident from the above-quoted statute, an award of costs may be made only where the assessment is reduced. In the situation described, the hearing officer dismissed the petition on jurisdictional grounds. Accordingly, the hearing officer had no authority to order an award of costs in that case. (We note also that a proper award of costs is always made against the respondent assessing unit, the award is not against the county clerk who collects the filing fee.)

In Tyrrell v. Town of Greenville, 108 A.D.2d 1092, 485 N.Y.S.2d 659 (3d Dept. 1985), the court found that a decision made by a small claims hearing officer, which was beyond his statutory grant of jurisdiction, to be void. We believe that the purported award of costs against the assessing unit in this case is similarly void, and is not enforceable against the assessing unit.

June 14, 1988

Updated: