Westchester Park Associates v. Unmack

Order unanimously reversed on the law without costs and motion granted, in accordance with the following memorandum: The exclusive remedy for judicial review of the amount of an assessment is a tax certiorari proceeding under Real Property Tax Law article 7 (Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262, 268). Since plaintiff does not question defendants’ jurisdiction to tax, the court erred by concluding that plaintiff could collaterally attack the assessment in a plenary action by asserting equitable estoppel as a ground for relief (see, Samuels v Town of Clarkson, 91 AD2d 836, 837). Since this action was commenced 18 months after the last act asserted as a basis for estoppel, the complaint must also be dismissed because it was time barred (RPTL 702 [2]; see, Stabile v Half Hollow Hills Cent. School Dist., 83 AD2d 945, 946). Lastly, the complaint should have been dismissed for failure to state a cause of action. Equitable estoppel cannot be invoked against a local government where the alleged conduct of its employee was unauthorized or unlawful (La Porto v Village of Philmont, 39 NY2d 7, 12; Matter of Wood v Cordello, 91 AD2d 1178). An Assessor has no authority unilaterally to correct an assessment after filing the tentative assessment roll (Matter of Niagara Mohawk Power Corp. v Town of Onondaga, 63 NY2d 786, revg on dissent of Boomer, J., 96 AD2d 1138). He is authorized only to transmit a verified statement that the roll requires correction due to a clerical error or an unlawful entry (RPTL 552 [2] [a]). Neither claim was made here. Estoppel cannot operate to create a right which never existed (Matter of Wood v Cordello, 91 AD2d 1178, 1179, supra). The fact that the Assessor may have represented to plaintiff that his 1981 assessment would be $550,000 and that, upon filing of a tentative assessment roll containing a greater amount, represented that he would correct the assessment and that plaintiff need not file a grievance does not invoke an equitable estoppel. Such representations, if made, were unauthorized and unlawful. (Appeals from order of Supreme Court, Erie County, Marshall, J.—dismiss complaint.) Present—Dillon, P. J., Denman, Green, Balio and Lawton, JJ.