Elant @ Fishkill
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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Petitioner(s)
INDEX NO. 54"3 "1- CCI
ASSESSMENT YEAR: 2009
NOTICE OF APPLICATION
FOR REVIEW OF TAX
ASSESSMENTS
In the Matter of the Application of
ELANT@FISHKILL INC DBA ELANT @
WAPPINGERSFALLS INC
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ID #6158-18-359123 ~
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THE TOWN OF WAPPINGER,
A MUNICIPAL CORPORATION,
ITS ASSESSOR AND BOARD OF
AND THE WAPPINGER CENTRAL
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For a Review under Article 7 of the RPTL. I
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ASSESSMENT REVIEW,
SCHOOL DISTRICT
Respondents,
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PLEASE TAKE NOTICE, that upon the annexed Petition, duly verified
July 8, 2009, an application will be made by the attorney set forth
below at a Special Term of the Supreme Court of the State of New York,
on September 9, 2009, at 9: 30 0' clock in the forenoon thereof or as
soon as counsel can be heard, for a review under Article 7 of the Real
Property Tax Law of the State of New York of the tax assessment(s) of
certain real property(s) of the Petitioners situated in the above
captioned Municipal Corporation located in the County of Dutchess,
State of New York, appearing upon its assessment rolls, and being the
real property more particularly described in the annexed Petition, to
the end that all proceedings, decisions and actions in the matter of
the said assessment(s) and assessment rolls of said property(s) may be
reviewed, reduced, corrected, modified, vacated, be adjudged illegal,
null and void on the merits by such Court as alleged in the said
Petition and for such further and other relief as will be applied for
and as may be just and proper in the premises.
Dated:
New York, New York
July 8, 2009
Brandt, Steinberg & Lewis LLP
Attorneys for Petitioner(s)
386 Park Avenue South, Suite 600
New York, New York 10016
(212) 563-2200
TO: Respondents above named
Town of Wappinger Attorney
20 Middlebush Road
Wappinger Falls, NY 12590
RECEIVED
JUL 2 0 2009
in\.MN CLER'(
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
______________________________________________1
In the Matter of the Application of I
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For a Review under Article 7 of the RPTL. I
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PETITION FOR REVIEW
OF TAX ASSESSMENTS
ELANT@FISHKILL INC DBA ELANT @
WAPPINGERSFALLS INC
ASSESSMENT YEAR: 2009
Petitioner(s)
ID #6158-18-359123
-against-
THE TOWN OF WAPPINGER,
A MUNICIPAL CORPORATION,
ITS ASSESSOR AND BOARD OF
AND THE WAPPINGER CENTRAL
ASSESSMENT REVIEW,
SCHOOL DISTRICT
Respondents,
TO THE SUPREME COURT OF THE STATE OF NEW YORK:
The petitioner above-named respectfully shows:
FIRST: That at all times hereinafter mentioned Petitioner was and is
the individual or domestic corporate owner or lessee obligated to pay taxes
on certain property located within the tax district of the Respondent
Municipal Corporation set out, described and designated herein on Schedule A.
SECOND: That the Assessor or Board of Assessors of the Respondent
Municipal Corporation, ascertained all the real property located therein and
the names of the owners thereof; and on or before the time prescribed by law
assessed all real property situated therein not exempt by law from taxation;
and made, prepared and completed the tentative 2009 assessment rolls of said
Municipal Corporation and deposited them in his/her or their office for
examination. That the actual assessment and/or transition assessment is
excessive because of a failure to comply with the provisions of Real Property
Tax Law ("RPTLU), section 1904.
If the assessing jurisdiction is a special assessing unit as defined by
the RPTL, the actual assessment and/or transition assessment is excessive
because of failure to comply with the methods of computation and limitations
on increases in assessed value set forth in RPTL section 1805.
THIRD: That the assessment and descriptions on said assessment rolls
for each Petitioner's real property as the same appeared thereon were as
listed herein on Schedule A.
FOURTH: That each Petitioner or its authorized agents or attorneys
examined said assessments and descriptions and within the time allowed
therefor, said Petitioner (s), their authorized agents or attorneys having
knowledge of the facts, protested and complained of said assessments and made
1
application to have them corrected and reduced to their correct assessed
values and fully exempted from taxation upon the grounds that they were
unequal, excessive and unlawful and Petitioner(s), their authorized agents or
attorneys, filed with the Board of Assessors or Assessor, of the Respondent
Municipal Corporation a complaint or statement under oath, specifying the
respects in which the assessments complained of were incorrect and objecting
and protesting against the same and requesting that said assessments be
reduced to the correct valuations listed on Schedule A, and fully exempted
from taxation. That the said complaint or statement under oath was made and
filed in compliance with the Real Property Tax Law of the State of New York
and with such provisions of Charter, Local Law and Ordinances of the
Respondent Municipal Corporation as may apply and as may be valid.
FIFTH: That the said Board of Review and Assessor or Board of
Assessors denied each of Petitioner's applications to reduce the assessed
values of its property to said requested correct assessed values, and to
exempt same. That the Assessor and Board of Assessors and/or Board of
Assessment Review, on or before the time prescribed by law, made and
completed the final assessment rolls of its taxing unit. That the Board of
Assessors or Assessor verified said rolls and duly made and subscribed his or
their oaths thereto pursuant to Section 514 or 1406 of the Real Property Tax
Law of the State of New York substantially as follows: I (We), the
undersigned, do (severally) depose and swear that, to the best of my (our)
knowledge and belief, I (we) have set forth in the foregoing assessment rolls
all the real property situated in the assessing unit in which I am (we are)
assessor(s), and with the exception of changes made by a board of review and
special franchises assessed by the state board, I (we) have estimated the
value of such real property at the sums which I (we) have determined to be in
accordance with section three hundred five of the real property tax law, That
the Assessor or the Board of Assessors thereafter filed said assessment rolls
or certified copies thereof and delivered same to their Clerk. That the
assessments and descriptions on the final assessment rolls of each
Petitioner's real property is listed herein on Schedule A.
SIXTH: That the final assessments of Petitioner's real property are
erroneous by reason of unequal assessment, excessive assessment and unlawful
assessment, That the said real property is actually of an assessable value
not exceeding those values listed as Requested Correct Valuation(s) on
Schedule A; and that the extent of such over-assessments are listed herein on
Schedule A.
SEVENTH: That the assessments of Petitioner's real property are
unequal in that they have been made at a higher proportionate value than the
assessments of other real property on the same rolls by the same offices,
That while the real property of each of the Petitioners is assessed at more
than its full value, other properties situated in this taxing unit and
assessed upon its assessment rolls are assessed at a much lower percentage of
their full value, That such inequality exists not only in specific instances
but generally throughout Respondent Municipal Corporation. That the
assessments have been made at a higher proportionate valuation than the
assessed valuation of other real property in the same class on the same roll
by the same officers, specifying as the instances of such unequal assessment
all the real property in said class on the tax rolls in the assessing
jurisdiction. That Petitioners specify as instances in which inequality
exists, other real properties situated within said assessing unit and
assessed upon its assessment rolls, and that your Petitioners are and will be
2
injured thereby.
That if the assessing jurisdiction is an approved assessing unit as
defined by the RPTL, Article 19 of the RPTL and the applicable local laws
adopting the provisions of Article 19 violate the equal protection clauses of
the federal and state constitutions because they permit similarly situated
properties in different geographic areas wi thin the municipality where the
assessing jurisdiction is located to be taxed unequally and, therefore, they
are unconstitutional.
That the assessing jurisdiction's deliberate policy of reassessing only
those properties that have been recently transferred results in a denial of
Petitioner's right to equal protection under the United States and New York
State Constitutions.
That the assessing jurisdiction's method of selective reassessment and
its failure to reassess all real property on its assessment rolls is illegal
and unconstitutional and results in Petitioner bearing a disproportionate tax
burden.
EIGHTH: That Petitioner's property is unlawfully assessed In that:
(a) Petitioner's property and all real property in the assessing jurisdiction
are not assessed at a uniform percentage of value as required by RPTL Section
305(2); (b) in the event the assessed value has been increased over the final
assessed valuation for the previous tax year, respondents have failed to
comply with the provisions of the RPTL; (c) Petitioner's property is not
properly classified in that there are no valid and reasonable differences
between it and other property placed in other classes; (d) the assessment on
Petitioner's property has been made by a person or body without the authority
to make such assessment; (e) respondents have unlawfully employed a defective
valuation statute; and (f) the property is wholly exempt from taxation and
has been incorrectly set forth on the taxable assessment roll.
NINTH: That the general ratio of the assessed values to the full
values of real property situated in the Respondent Municipal Corporation is
such, that in order to be equal and proportionate with the assessments of
other real property, the assessments of Petitioner's real property should be
reduced as aforesaid.
TENTH: That the assessing jurisdiction exceeded the limitations
established by the Constitution of the State of New York, Article 8, Section
10, for the amount of revenues that could be raised through real estate
taxes. In addition, by discriminating between types of properties,
respondents have reduced the value of "taxable" real estate so that the tax
rate exceeds the constitutional limitations by reason of their having
effectively granted exemptions from taxation to certain premises; Petitioner
has, therefore, been compelled to pay more than the constitutionally
permissible tax rate.
ELEVENTH: That RPTL Section 720(3)
in that it improperly limits the scope
Petitioner.
is unlawful and unconstitutional
of evidence to be adduced by
TWELFTH: That the assessments were fixed in contravention of RPTL
Section 581 and, therefore, are unlawful, unequal and excessive.
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THIRTEENTH: That if the assessment of the property herein was
increased, it was without adequate cause after a final order, administrative
determination or stipulation between parties determining the assessment
thereof for a previous year. That the amount of the assessment is grossly
discriminatory and that your Petitioners are and will be injured thereby.
FOURTEENTH: That thirty days have not elapsed since the filing of
the certified copy of the completed and verified assessment roll as required
by law.
WHEREFORE, your Petitioner(s) pray(s) that the Court review all and
singular, the proceedings, decisions and actions of the Assessor or Board of
Assessors, as the case may be, the Board of Assessment Review and Respondent
Municipal Corporation in the matter of the tax assessments and assessed
valuations of the real property of the Petitioner and that the said tax
assessments and assessed valuations be exempted from taxation, modified,
corrected, vacated or reduced, and be made equal to assessed valuations by
class or generally on the same rolls, as the case may require, that said
assessments be adjudged unlawful, null and void and that the Respondents
refund to Petitioner all unlawfully assessed taxes paid, and that the
Petitioner have such other and further relief including additional allowances
pursuant to Section 722 of the Real Property Tax Law of the State of New York
as may be just and proper in the premises and that the Petitioner be awarded
costs and disbursements of this proceeding, together with reasonable
expenses, including fees of experts and attorneys.
Dated:
New York, New York
July 8, 2009
ELANT@FISHKILL INC DBA ELANT @ WAPPINGERSFALLS INC
Petitioner(s),
STATE OF NEW YORK
)
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ss. :
COUNTY OF NEW YORK
Hubert J. Brandt, being duly sworn, deposes and says that he is the duly
authorized representative and attorney for the Petitioner above named, that
he has read the foregoing petition, knows the contents thereof, that the same
is true to his own knowledge, except as to those matters therein stated to be
alleged upon information and be~ as to those matters he believes the
same to be true. ~ ~
Sworn to before me on this
~. day of '--.,)0 ~ 200~.
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€otary Public
Mlchaele Francots
No,02FR6104229
Qualified in Kings County
Commission Expires January 20.
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4
AUTHORIZATION
The undersigned, being an aggrieved person within the meaning of the Real Property Tax Law, or
an officer or partner of such aggrieved person, hereby authorizes HUBERT J. BRANDT,
RICHARD A. STEINBERG & WILLA 1. LEWIS to act as our agent for the assessment year 2009
to:
(1) Make and serve a statement (also known as a complaint or protest), specifying the respect in
which the assessment of the property listed below is illegal, erroneous, or unequal; and
(2) Verify, serve and file a petition for judicial review of real property assessment, pursuant to
Article 7 of the Real Property Tax Law.
(3) BRANDT, STEINBERG & LEWIS LLP, 386 Park Avenue South, Suite 600, New York, NY
10016, are authorized to represent the undersigned in all proceedings before the Board of
Assessment Review and the Supreme Court, State of New York, and all appeals there from:
This Authorization applies to the following petitioner:
PETITIONER:
Elant@Fishkill Ine dba Elant @ WappingersFalls Ine
COUNTY:
MUNICIP ALITY:
DUTCHESS
TOWN OF WAPPINGER
VILLAGE:
TAX MAP I.D.:
VILLAGE:
N/A
Section 6158 Block 18 Lot 359123
ADDRESS OF PRElVIISES:
37 :Meiser Avenue
By: ,~ct~
Todd A. Whitney
Title: Executive VP
Date:
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ADULTHOM
SCHEDULE "A"
ELANT@FISHKILL INC DBA ELANT @ W APPINGERSF ALLS INC
THE TOWN OF WAPPINGER
Tentative Requested Final
Assessed Correct Assessed Extent of
Va1uation(s) Valuation(s) Va1uation(s) Over-Assessment
Property Description ($) ($) ($) ($)
Sec. 6158, Bl. 18, Lot. 359123
37 MEISER A VENUE
1,922,550 400,000 1,922,550 1,522,550
Assessment should be fully exempt from taxation
5
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
______________________________________________1
In the Matter of the Application of I INDEX NO.
I
ELANT@FISHKILL INC DBA ELANT @ I ASSESSMENT YEAR: 2009
WAPPINGERSFALLS INC I
I
Petitioner(s) I
1
-against- I
I
THE TOWN OF WAPPINGER, I
A MUNICIPAL CORPORATION, I
ITS ASSESSOR AND BOARD OF ASSESSMENT REVIEW, I
AND THE WAPPINGER CENTRAL SCHOOL DISTRICT I
Respondents, I
I
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PETITION AND NOTICE OF MOTION
--------------------------------------------------------------------
Brandt, Steinberg & Lewis LLP
Attorneys for Petitioner
Office & P.O. Address
386 Park Avenue South, Suite 600
New York, NY 10016
212-563-2200
5
~EP-24~2009 THU 03:45 PM GELLERT KLEIN PC
FAX NO. 8454546221
P. 01/02
GELLERT & KLEIN, P.C.
rlECEIVEl..J
.SEP 2 ~ 2009
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ATTORNEYS & COUNSELORS AT LAW
75 Washington Street
poughkeepsie, New York 12601
:-
tiECEIVED
SEP 2 5 2009
T"f')WN CLERv
FAX COVER SHEET
To~ Efraim Nieves
DatE!: September 24, 2009
Re: Elant vs. TIC Wappinger From: Scott L. Volkman, Esq.
Fax No.: 212-401-9155
Telephone No.:
Number of Pages:
(Including cover page)
Notes:
cc: Hubert J. Brandt, Esq. - 212-629-4272
Kathryn Weg Brandt, Esq.
Christian Harkin, Assessor - 298-1478
This FAX has been sent from:
Telephone No.
(Xl poughkeepsie Office (845) 454-3250
(I Westchester Office (914) 249-0100
Fax No.
(845) 454-4652
(914) 249-0111
Please call if not properly transmitted or if you have any questions regarding this transmission.
CONFIDENTIAL COMMUNICATION
THIS TRANSMISSION IS IN1'ENDED ONLY FOR THE INDMDUAL OR ENTITY TO WHICH IT IS ADDRESSED
AND MAY CONTAIN INFORMATION THAT IS PRNlLEGED, CONFIDEN1'IAL AND EXEMPT FROM
DISCLOSURE. IF THE RECIPIENT OF THIS COMMUNICATION IS NOT THE INTENDED RECIPIEI\'T (OR ITS
EMPLOYEE AGENT RESpONSIBLE FOR DEUVERING THE COMMUNICATION) YOU ARE NOTIFIED THAT
ANY DISSEMINATION, OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IFYOU HAVE
RECENED THIS COMMUNICATION IN ERROR, PLEASE CALL THE SENDER IMMEDIATELY AND MAIL THE
ORIGINAL COMMUNICATION BACK TO US AT THE ABOVE ADDRESS. WE WILL PROMPTLY REIMBURSE
YOUR EXPENSES. THANK YOU.
Gellert & Klein, P.C. File No.
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NC_
Client
9-~V-or;- /iw~ ~ Qw.JVM;J/lS O~
SEP-24-2009 THU 03:45 PM GELLERT KLEIN PC
FAX NO. 8454546221
P. 02/02
~eond.rd Klein
Arth;.)f L Gellet
S:ephen E Ehlers
John A Geoghegan
UlIi"n S_ Weigert
Ja ~ne$ M, Fedorct'd k
Scott ~,Volkman
David R Wise"
Roderick 1. Mac~eod
Be'vin S_ H::Hringtcr
Kellv :.. Traver'
:.Jari!el H. Stock
PalTlela 8, Richardson ...
Law-a E, Vincenzl
.. Gellert & Klein, p_c
IIIIaJ Attorneys at Law
75 Washington Street. Poughkeep5ie. NY 12601
(845) 454-3250
(845) 454--4652 fax
Counsel
S, Nina Gellert
Raina E Mai5s.;l~
Senator S,;ephen i\i1, Saland
Robert C Vince'lt, Jr
Westchester cftke
30 I 0 Westchester Aven..... Suite 302
p~lr(h~,e, NY 10577
(9\4) 249 0100
(914-) 249-01 11 fax
Joseph H Gehert
(1907.1989)
'Ai~O f\dn~tted 1[1 CT
4AlSQ Adm:tted in NJ
o-A:so Admitted in England
www.gklaw.us
September 24, 2009
Hon, JomlR.LaCava
Westchester Supreme Court
111 Dr. Martin Luther King Jr. Blvd.
White Plains, NY 10601
Re: Elant of Fisbkill vs. To\\o'Il of Wappinger
Index No.: 2007-4429; 2008-5268
Motion Return Date: September 25. 2009
H~C~rV~D
....}tlO 2 ~ 2009
'JllftN
ClE:~,_
Attn.: Efraim Nieves, Law Clerk
Dear Efraim:
This will confirm that the Motion return date has been adjourned upon consent of the
parties until October 16,2009. regarding the above captioned matter.
If you have any questions. please do not hesitate to contact this office.
."
SLVlbr
cc: Hubert J. Brandt, Esq.
Kathryn Weg Brandt, Esq.
Cluistian Harkins, Assessor