Selected decisions by New York Courts posted on the Internet during the week ending June 17, 2022

New York Botanical Garden sues its insurance company for its "business interruption losses" resulting from an order by a government body closing its facilities in response to COVID-19

New York Botanical Garden v Allied World Assur. Co. (U.S.) Inc.

2022 NY Slip Op 03871

Decided on June 14, 2022

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 14, 2022
Before: Webber, J.P., Gesmer, Oing, Singh, Kennedy, JJ.

Index No. 803872/21E Appeal No. 16127 Case No. 2021-04319

[*1]New York Botanical Garden, Plaintiff-Respondent,

v

Allied World Assurance Company (U.S.) Inc., Defendant-Appellant.

Clyde & Co US LLP, New York (Kevin M. Haas of counsel), for appellant.

Beveridge & Diamond P.C., New York (John H. Kazanjian of counsel), for respondent.

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered October 22, 2021, which denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, with costs.

Plaintiff is a non-profit organization which conducts research and education about plant science, and maintains a 250 acre botanical garden in the Bronx open to the public. Defendant Allied World Assurance Company (U.S.) Inc. (AWA) issued a Pollution Legal Liability policy to plaintiff. Under the policy, "contingent business interruption" is defined as "the necessary suspension of your business operations at a location owned or leased to you as a result of an order by a government body or authority denying access to the location . . . provided that" the suspension and the order must be "caused solely and directly by a pollution incident on, at or under an independent location." "Independent location" is defined as "a location that is not and was not at any time a location owned, leased, managed, operated or used by an insured."

Plaintiff sought coverage under the policy for "contingent business interruption" loss which it claimed resulted from governmental orders shutting down its operations in response to COVID-19. Defendant denied the claim in full, although it acknowledged that "COVID-19 constitutes a 'pollution incident' as defined in the Policy." Plaintiff then sued, seeking a declaration that AWA was required to pay its business interruption losses. It also asserted a breach of contract claim, premised on AWA's denial of coverage, and a cause of action for breach of implied covenant of good faith and fair dealing. The motion court denied defendant's motion to dismiss pursuant to CPLR 3211(a)(1) and (7).

Defendant failed to establish that, under the terms of the insurance policy it issued to plaintiff, contingent business interruption coverage was available only if plaintiff was completely denied access to its property. The policy contemplates coverage for periods when plaintiff would have some temporary access to the property, including periods involving potential partial resumption of operations to mitigate damages, which for plaintiff included maintaining its extensive plantings (see generally Matter of Viking Pump., Inc., 27 NY3d 244, 257 [2016]; Westchester Fire Ins. Co. v Schorsch, 186 AD3d 132, 140 [1st Dept 2020], appeal withdrawn 37 NY3d 990 [2021]). The cases relied upon by defendant, which involve civil authority coverage in property liability policies and periods of complete denial of access due to physical damage are inapposite (see e.g. 54th St. Ltd. Partners v Fidelity & Guar. Ins. Co., 306 AD2d 67, 67 [1st Dept 2003]). Defendant also failed to establish that the executive orders denying access were not solely and directly the result of a pollutant at an "independent location," within the meaning of that term of the policy.

The complaint states a cause of action for breach of the implied covenant of good faith [*2]and fair dealing by alleging that defendant did not conduct a complete or fair investigation of its claim, had no meritorious basis for denying the claim, and simply denied it in accordance with a business policy of denying COVID-related business interruption claims (see Bi-Economy Mkt., Inc. v Harleysville Co. of N.Y., 10 NY3d 187, 195 [2008]; East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 AD3d 881, 885 [2d Dept 2021]; Prospect St. Ventures I, LLC v Eclipsys Solutions Corp., 23 AD3d 213, 213 [1st Dept 2005]). The breach of the implied covenant claim is not duplicative of the breach of contract claim, since, although there is some overlap in the facts alleged, it relies upon different facts and seeks different damages from the contract claim (see Bi-Economy, 10 NY3d at 191-192; D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 168 AD3d 505, 507 [1st Dept 2019]; Bostany v Trump Org. LLC, 73 AD3d 479, 481 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 14, 2022

A firefighter injured on the job unable to work "regular 10-24 hours shifts" is entitled to General Municipal Law §207-a disability leave benefits absent being offered the full-time equivalent of shorter shifts or light-duty

Matter of Newman v City of Tonawanda

2022 NY Slip Op 03834

Decided on June 10, 2022

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 10, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND CURRAN, JJ.

402 CA 21-01479

[*1]IN THE MATTER OF AMY NEWMAN, PETITIONER-APPELLANT,

v

CITY OF TONAWANDA, RICK DAVIS, AS MAYOR OF CITY OF TONAWANDA, AND CHARLES STUART, FIRE CHIEF OF CITY OF TONAWANDA, RESPONDENTS-RESPONDENTS.

THOMAS J. JORDAN, ALBANY, FOR PETITIONER-APPELLANT.

WEBSTER SZANYI LLP, BUFFALO (CHARLES E. GRANEY OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

 

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Mark J. Grisanti, A.J.), entered May 25, 2021 in a proceeding pursuant to CPLR article 78. The judgment granted the motion of respondents to dismiss the petition and dismissed the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated, and the relief sought in paragraph (b) of the petition is granted.

Memorandum: Petitioner is a firefighter for respondent City of Tonawanda (City). In July 2018, petitioner injured her left shoulder while on the job when she fell down some stairs. After missing several months of work, she had surgery on her shoulder and then returned to light-duty work. In late May 2020, petitioner returned to work with no restrictions and worked the current firefighter schedule of 24-hour shifts. By the end of petitioner's second week of work, after four shifts, she experienced increased pain in her shoulder. She saw her treating orthopedist, who provided a note stating that petitioner "cannot return to work." Subsequently, by letter to respondent Charles Stuart, Fire Chief of the City (Fire Chief), petitioner applied for General Municipal Law § 207-a benefits. The Fire Chief, relying on medical opinions that petitioner was able to perform her duties on a "reduced schedule" of 8-hour shifts, up to 40 hours a week, concluded that petitioner was therefore not eligible for General Municipal Law § 207-a benefits and denied the application. The City thereafter scheduled petitioner for 8 hours of work per day when her crew was working its 24-hour shifts, resulting in petitioner being scheduled for fewer hours and thus receiving less pay than a firefighter working without those restrictions.

Petitioner commenced this CPLR article 78 proceeding and declaratory judgment action seeking, in effect, approval of her application for section 207-a benefits. Respondents moved to dismiss the petition, and Supreme Court granted the motion. We now reverse.

As a preliminary matter, we note that this is properly only a CPLR article 78 proceeding inasmuch as the relief sought by petitioner is available under CPLR article 78 without the necessity of a declaration (see generallyCPLR 7801).

In reviewing respondents' determination, which was made without a hearing, "the issue is whether the action taken had a 'rational basis' and was not 'arbitrary and capricious' " (Matter of Ward v City of Long Beach, 20 NY3d 1042, 1043 [2013]). " 'An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts' " (id.; see Matter of Erie County Sheriff's Police Benevolent Assn., Inc. v County of Erie, 159 AD3d 1561, 1562 [4th Dept 2018]). "If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable" (Ward, 20 NY3d at 1043; see Erie CountySheriff's Police Benevolent Assn., 159 AD3d at 1562).

A firefighter seeking section 207-a benefits must show "that his or her injury or illness results from the performance of his or her duties and that he or she is physically unable to perform his or her regular duties as a firefighter" (Matter of Miserendino v City of Mount Vernon, 96 AD3d 946, 948 [2d Dept 2012]). The regular duties of a firefighter for the City required shifts of between 10-24 hours, and the medical evidence is undisputed that petitioner could work only 8-hour shifts. Inasmuch as the evidence established that petitioner could not work the longer shifts, and she was not offered the full-time equivalent of the shorter shifts or light-duty work, the determination that she is not entitled to General Municipal Law § 207-a benefits is arbitrary and capricious. Petitioner is therefore entitled to the relief sought in paragraph (b) of the request for relief in her petition.

Entered: June 10, 2022

Ann Dillon Flynn

Clerk of the Court

A grievance complaint filed with the assessor or board of assessment review at the administrative level by a net lessee who is contractually obligated to pay real estate taxes on the subject property satisfies RPTL 524 (3) and has standing to challenge the assessment

Matter of DCH Auto v Town of Mamaroneck

2022 NY Slip Op 03929

Decided on June 16, 2022

Court of Appeals

Wilson

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 16, 2022

No. 55

[*1]In the Matter of DCH Auto, & c. et al., Appellants,

v

Town of Mamaroneck, & c., et al., Respondents.

Matthew S. Clifford, for appellants.

William Maker, Jr., for respondents.

CVS Albany LLC et al., International Council of Shopping Centers, Inc., Stop & Shop Supermarket Company, LLC, Wakefern Food Corporation, New York State School Boards Association, New York State Conference of Mayors and Municipal Officials et al., amici curiae.

WILSON, J.

DCH Auto leased a parcel of real property located in Mamaroneck, New York. DCH's lease with the property's owner is a "net lease," which means that DCH must pay, in addition to rent, all the real estate taxes associated with the property. Starting in 2009, DCH believed that certain tax assessments for the property were too high, so it challenged those tax assessments by filing grievance complaints with the local board of assessment review. After the board reviewed and denied the challenges to the assessments, DCH filed petitions for judicial review. Supreme Court dismissed DCH's petitions, holding that only an owner—and not a net lessee—may file the initial grievance complaints pursuant to RPTL 524 (3) and that the failure of the owner to file the initial grievance precluded judicial review of the board's determinations. The Appellate Division affirmed. The question we address is: does a grievance complaint filed with the assessor or board of assessment review at the administrative level by a net lessee who is contractually obligated to pay real estate taxes on the subject property satisfy RPTL 524 (3) such that the net lessee may properly commence an article 7 proceeding upon rejection of its grievance? We answer in the affirmative and reverse.

[*2]I

DCH Auto, now known as DCH Investments Inc. (New York) (together, DCH), operates a car dealership in Mamaroneck. In 2007, DCH entered into a 20-year net lease with the nonparty owner, 700 Waverly Avenue Corp. (Owner), of a parcel of real property located at 700 Waverly Avenue in the Village of Mamaroneck (Village), which is located within the Town of Mamaroneck (Town) (together, Mamaroneck).

The lease obligates DCH to pay "all ad valorem real estate taxes or other taxes in the nature thereof . . . levied or imposed against or with respect to" the subject property during the lease term. The lease also provides that DCH "shall have the right, at its sole cost and expense, to contest the amount or validity, in whole or in part, of any [tax] relating to the [subject property] by appropriate proceedings."

By administrative complaints pursuant to RPTL 524 (3), DCH timely challenged eight tax assessments of the subject property: the Town's tax assessments for five tax years (2009, 2010, 2011, 2013, and 2014), and the Village's tax assessments for three tax years (2010, 2011, and 2013). DCH filed the 2014 complaint against the Town in Owner's name but filed all the other complaints in its own name.

At the time DCH filed its grievances, the Town's website stated that "[a]ny person aggrieved by an assessment," including a "tenant who is required to pay the real estate taxes pursuant to a lease" "may file a complaint." The Town's website also directed taxpayers to the website of the New York State Department of Taxation and Finance's Office of Real Property Tax Services (ORPTS), which similarly instructed that "[a]ny person who pays property taxes" including "tenants who are required to pay property taxes pursuant to a lease or written agreement" may file an assessment challenge. That same instruction is still on ORPTS's website today (NY St Dept of Taxation & Fin, Off of Real Prop Tax Servs, Contesting Your Assessment in New York State 2 [Feb. 2012], https://www.tax.ny.gov/pdf/publications/orpts/grievancebooklet.pdf[last accessed June 9, 2022]).

For each complaint challenging the Town's assessments, the Town Board of Assessment Review accepted the grievances, considered them, and confirmed the Town's assessments. The Town Board did not dismiss the complaints or indicate that the complaints were in any way defective. Similarly, the Village Board accepted and considered the complaints and confirmed the Village's assessments.

Once DCH received the Town and Village Board determinations, it timely filed judicial petitions challenging the Town and Village assessments pursuant to RPTL article 7. After procedural history not relevant here, in September 2016, the Town and Village jointly moved to dismiss each proceeding "for lack of subject matter jurisdiction due to [DCH]'s failure to satisfy a condition precedent for challenging the assessments"—namely "[t]he failure of the [o]wner to submit [the] RP-524 [c]omplaints." In opposition, DCH argued that the complaints were properly filed because RPTL 524 (3) did not provide that only an "owner" may file a complaint and that the plain text of RPTL 524 (3) and our case law "recognize the right of a non-owner tenant who is responsible for paying the real property taxes to seek both administrative and judicial review of the assessment" (Rec at 304-312). DCH alternatively argued that the purported defect was, at most, "technical"; that the Town and Village were not prejudiced by it; and the defect was not jurisdictional (Rec at 313-320).

Based on joint stipulated facts and submitted documentary evidence, Supreme Court granted the Town and Village's joint motion and dismissed the petitions. The court held that it lacked subject matter jurisdiction to review the assessments because, although DCH was "[u]ndisputedly . . . 'aggrieved' by the decisions of the Boards," it "did not satisfy a condition precedent to the commencement of these proceedings" because the owner did not file the complaints pursuant to RPTL 524 (3). Finally, the court held that "the failure of the owner to raise the RP-524 Complaint in the administrative process is a fundamental error which the courts cannot cure because of a lack of subject matter jurisdiction." The Appellate Division affirmed (178 AD3d 823 [2d Dept 2019]). It held that DCH "failed to satisfy a condition precedent to the commencement of an RPTL article 7 proceeding since it was neither the owner, nor identified in the complaints as an agent of the owner" (id. at 825). We granted leave to appeal (37 NY3d 903 [2021]).

[*3]II

A

The Real Property Tax Law (RPTL) sets out a two-step process for the review of property tax assessments. First, pursuant to RPTL 524, "a complainant who is dissatisfied with a property assessment may seek administrative review by filing a grievance complaint with the assessor or the board of assessment review" (Matter of Larchmont Pancake House v Board of Assessors, 33 NY3d 228, 235 [2019]). Second, once "the board of assessment review has made a determination, any 'aggrieved party' may seek judicial review of the assessment pursuant to RPTL article 7" (id.).

This case concerns the statutory language that governs the first step. The question presented on this appeal is whether the initial administrative complaints filed by DCH fail to meet the requirements of RPTL 524 (3) because DCH is not the owner of the property at issue. Specifically, the parties dispute the meaning of the provision requiring that the initial complaint be made "by the person whose property is assessed" (RPTL 524 [3]). RPTL 524 (3), as relevant, provides:

"[A] complaint with respect to an assessment shall be on a form prescribed by the commissioner and shall consist of a statement specifying the respect in which the assessment is excessive, unequal or unlawful, or the respect in which real property is misclassified, and the reduction in assessed valuation or taxable assessed valuation or change in class designation or allocation of assessed valuation sought. Such statement shall also contain an estimate of the value of the real property. Such statement must be made by the person whose property is assessed, or by some person authorized in writing by the complainant or his officer or agent to make such statement who has knowledge of the facts stated therein. Such written authorization must be made a part of such statement and bear a date within the same calendar year during which the complaint is filed" (id.[emphasis added]).

In contrast, RPTL 704 (1)—which governs step two, filing a petition for judicial review of the assessment pursuant to RPTL article 7—provides:

"Any person claiming to be aggrieved by any assessment of real property upon any assessment roll may commence a proceeding under this article by filing a petition described in section seven hundred six of this chapter in the manner set forth in [CPLR 304]" (RPTL 704 [1] [emphasis added]).

"In order to maintain an article 7 tax certiorari proceeding, the aggrieved party must allege in its petition that 'a complaint was made in due time to the proper officers to correct such assessment'" (Larchmont Pancake House, 33 NY3d at 235, quoting RPTL 706 [2]). That is, "the proper filing of an administrative grievance pursuant to RPTL article 5 is a condition precedent to judicial review pursuant to RPTL article 7" (Larchmont Pancake House, 33 NY3d at 235).

Mamaroneck's position is that RPTL 524 (3) is a condition precedent that must be satisfied for judicial review of a Board's determination of an assessment complaint to lie, and that the plain language of RPTL 524 (3) requires the administrative complaint be filed "by the person whose property is assessed"—which it argues means the property owner, and only the property owner. Once the owner files the administrative complaint, according to Mamaroneck, then any aggrieved person, including a net lessee, can challenge the result of the administrative grievance in court. In opposition, DCH argues that RPTL 524 (3) does not limit the filing of a complaint to a property owner and that it satisfied the condition precedent requirement in RPTL 706 (2) to file for judicial review.

[*4]B

"When presented with a question of statutory interpretation, our primary consideration 'is to ascertain and give effect to the intention of the Legislature'" (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006], quoting Riley v County of Broome, 95 NY2d 455, 463 [2000]). Although the text itself is generally the clearest indicator of legislative intent, where "the language is ambiguous, we may examine the statute's legislative history" (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009], citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]).

Here, RPTL 524 (3) presents an ambiguity. The clause "person whose property is assessed" is not defined in the RPTL, and it lends itself to more than one reasonable interpretation (see Matter of Golf v New York StateDept. of Social Servs., 91 NY2d 656, 662-663 [1998]). As Mamaroneck points out, the RPTL uses different language to delineate who may seek administrative review of a tax assessment by filing a grievance complaint with the assessor or the board of assessment review—"the person whose property is assessed" (RPTL 524 [3])—versus who may seek judicial review of the tax assessment—"[a]ny person claiming to be aggrieved" (RPTL 704 [1]). A colorable reading of the difference in that statutory language is that only an "owner" is a "person whose property is assessed" under the narrower language RPTL 524 (3).

As DCH urges, however, RPTL 524 (3) does not clearly require that a complaint be brought by an "owner" (or, e.g., "title holder") of "real" property. Had the legislature intended to require that only "owners" (or agents of owners) could initiate a grievance under RPTL 524 (3), it would have been simple to use that word. Indeed, in RPTL article 5, the legislature used the word "owner" myriad times (RPTL 500; 502; 504 [6]; 510-a; 510 [1]; 511; 512 [4]; 518; 520; 522 [4] [b]; 523 [3]; 523-b; 524 [4]; 525 [4]; 543; 551-a; 553; 554; 556 [2] [b]; 556-b; 560 [1]; 562; 564 [1]; 566 [1]; 574 [1]; 575-a [3]; 575-b; 582; 586; 588 [2]; 589 [1]; 592 [1] [c]; 594; 596 [3]). "We have firmly held that the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended" (People v Finnegan, 85 NY2d 53, 58 [1995] [citations omitted]). Here, the statutory language is broader—it provides that a complaint must contain a statement "by the person whose property is assessed" (RPTL 524 [3]). Similarly, RPTL 524 (3) provides that if a complaint is not filed by "the person whose property is assessed," then it may be filed by "some person authorized in writing by the complainant" (RPTL 524 [3]). Again, the legislature used the broad term "complainant," rather than the term "owner," and the statute gives no indication that the class of people who can authorize a third party to make the complaint is different from the class of people who may themselves file a grievance complaint. Moreover, the word "whose" can reasonably be used and understood as denoting possession, not only ownership (see Webster's Third New International Dictionary, Unabridged 2612 [Merriam-Webster 2002] ["of or belonging to whom as possessor or possessors : due to whom : inherent in whom : associated or connected with whom"]). Thus, DCH, also advances a colorable argument that it, as the holder of an exclusive net lease for the subject property, falls within the term "person whose property is assessed" in RPTL 524 (3). We therefore examine the legislative history to aid in interpreting that provision.

C

The legislative history of the origin of the clause "the person whose property is assessed" demonstrates that a net lessee obligated to pay real estate taxes of the leased real property may file a grievance under RPTL 524 (3).

Before 1896, any person "conceiving himself aggrieved" could complain to a board of assessors. For example, in 1799, the governing tax law provided that "assessors shall meet, and on application of any person conceiving himself aggrieved, shall review the said assessment" (L 1799, ch 72 [emphasis added]), and in 1851, the tax law similarly provided that "[o]n the application of any person conceiving himself aggrieved, it shall be the duty of the said assessors on such day to meet at the time and place specified, and hear and examine all complaints in relation to such assessments that may be brought before them" (L 1851, ch 176, § 4 [emphasis added]).

While the "any person conceiving himself aggrieved" statutory language was in force, our Court's decisions similarly reflected that any aggrieved person could complain to the local assessor. For instance, in Jewell v Van Steenburgh, we held that assessor's failure to give notice upon the completion of an assessment was a jurisdictional [*5]defect rendering the tax invalid because "[t]his is the only mode by which persons interested have an opportunity to be heard" (58 NY 85, 91 [1874] [emphasis added]).

During that same time period, when the "any person conceiving himself aggrieved" statutory language was still in force, we also used the language "parties whose property is assessed" to describe who may file grievance complaints with a local board of assessors (People ex rel. New York v McCarthy, 57 Sickels 631 [1886] ["Except for the provision of the statute authorizing parties whose property is assessed to appear before the town, ward, or city assessors, and make affidavit as to the circumstances and value of property assessed to them respectively, no provision is made for the hearing of such parties by any of the administrative bodies engaged in perfecting the valuations of taxable property"]). The issue in People ex rel. New York v McCarthy was different from the issue presented here—the petitioner was seeking a review of the state board of equalization's proceedings in equalizing property appraisals in the state among several counties—but it is nevertheless instructive that we appear to have considered the two phrases to be synonymous.

Then, in 1896, the "person . . . whose property is assessed" language first appeared in the tax law. That year, the legislature enacted a provision governing the hearing of grievance complaints. The new provision provided:

"Such complainants shall file with the assessors a statement, under oath, specifying the respect in which the assessment complained of is incorrect, which verification must be made by the person assessed or whose property is assessed, or by some person authorized to make such statement, and who has knowledge of the facts stated therein" (L 1896, ch 908, § 36 [emphasis added]).

Although the clause "person assessed or whose property is assessed" was new, the New York State Commissioners of Statutory Revision explicitly stated that the change was not substantive:

"The provision that the complaint shall be in writing and filed with the assessors is new. L. 1857, ch. 176, § 6, requires the examination to be subscribed by witness and filed in town clerk's office, while § 36 merely requires the minutes of the testimony to be so filed. Otherwise there is no change of substance" (1896 Rep of Commrs of Statutory Revision, reprinted in 1896 Annual Rep of Commrs of Statutory Rev of the St of NY at 39, available at https://www.google.com/books/edition/Annual_Report_of_the_Commissioners_of_St/bH44AAAAIAAJ?hl=en & gbpv=0 [emphasis added]).^[FN1]

That the clauses "any person conceiving himself aggrieved" and "person assessed or whose property is assessed" were interchangeable is also supported by the text of the 1896 bill itself, which provided that in the event that a board of assessors failed to meet, "any person aggrieved by the assessment" could instead seek relief from the municipality's board of supervisors (L 1896, ch 908, § 40).

Thus, based on this evolution of the statutory text, and our Court's contemporaneous interpretations, it is clear that it was not the legislature's intent to limit the meaning of "person whose property is assessed" to owners of real property.

[*6]D

In keeping with the legislature's intent, we therefore hold that a grievance complaint filed with the assessor or board of assessment review at the administrative level by a net lessee who is contractually obligated to pay real estate taxes on the subject property satisfies RPTL 524 (3).

That interpretation is not only in keeping with the legislative history, but it construes the RPTL "as a whole," with "its various sections . . . considered together and with reference to each other'" (Matter of Anonymous v Molik, 32 NY3d 30, 37 [2018], quoting People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]). Interpreting the RPTL such that a net lessee may both file the RPTL 524 (3) complaint and (as is undisputed) the RPTL 704 (1) petition, given that the complaint is a prerequisite to filing a petition, harmonizes the two statutory steps of our tax assessment scheme. Such a result ensures that the party with the economic interest and legal right to challenge an assessment will not be unable to raise a challenge because an out-of-possession landlord that lacks economic incentive fails to file an administrative complaint. It also avoids an inequitable result by which a net lessee may be precluded from obtaining full review of its assessment if the complaint was brought by an owner with different interests, because a petitioner in an RPTL article 7 proceeding may not add grounds for review beyond those specified in the original RPTL 524 (3) complaint (see Matter of Sterling Estates, Inc. v Board of Assessors of Nassau County, 66 NY2d 122, 127 [1985]). Indeed, our conclusion is consistent with guidance from the New York State Department of Taxation and Finance, which instructs that lessees who are contractually obligated to pay real estate taxes are eligible to grieve tax assessments (see NY St Dept of Taxation & Fin, Off of Real Prop Tax Servs, Contesting Your Assessment in New York State [Feb. 2012] ["Any person who pays property taxes can grieve an assessment, including . . . tenants who are required to pay property taxes pursuant to a lease or written agreement"], https://www.tax.ny.gov/pdf/publications/orpts/grievancebooklet. pdf).

In support of its restrictive interpretation that "person whose property is assessed" in RPTL 524 (3) is limited to "owner," the Appellate Division primarily relied on Matter of Circulo Housing Development Fund Corp. v Assessor of City of Long Beach (96 AD3d 1053 [2d Dept 2012]). That case is grounded on a misapplication of our decision in Matter of Sterling Estates (66 NY2d 122). In Circulo, the Appellate Division interpreted RPTL 524 (3) and announced that it contained an ownership requirement: "RPTL article 5 requires that the property owner file a complaint or grievance to obtain administrative review of the tax assessment" (id. at 1056 [emphasis in original]). The Court gave no reasoning and cited no rules of statutory construction or legislative history to reach its holding, but instead cited only our decision in Sterling. In Sterling, however, we did not suggest—much less decide—that the owner of a property must file the administrative complaint. Instead, we emphasized that "it is essential that sufficient facts detailing the taxpayer's complaint be presented to the assessors so that realistic efforts at adjustment can be made" (Sterling, 66 NY2d at 125). Our holding in Sterlingturned on the substantive incompleteness of the administrative petition, not the identity of the filer (id. at 127). Thus, to the extent that Circulo is inconsistent with our holding today, it should not be followed.

III

In sum, we hold that DCH, as a net lessee contractually obligated to pay the real estate taxes of the subject property is included within the meaning of "the person whose property is assessed" under RPTL 524 (3). Accordingly, the judgment appealed from and the Appellate Division order brought up for review should be reversed, with costs, and the motion to dismiss the consolidated proceeding with respect to 700 Waverly Avenue, Mamaroneck, New York denied.

Judgment appealed from and Appellate Division order brought up for review reversed, with costs, and motion to dismiss the consolidated proceeding with respect to 700 Waverly Avenue, Mamaroneck, New York denied. Opinion by Judge Wilson.

Chief Judge DiFiore and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.

Decided June 16, 2022

Footnotes

Footnote 1: "L 1857, ch 176" is a mis-citation. The correct citation is to L 1851, ch 176, § 6, which, as accurately described in the 1896 Report of the Commissioners of Statutory Revision, did not contain a requirement that a complaint to the local assessors be filed in writing.

Continuing Tomorrow! Lunch and Learn with the Advocate for Injured Workers

The Workers’ Compensation Board (Board) continues its 2022 Lunch and Learn webinar series tomorrow, and there is still time to register!

On the dates listed below, the Board’s Advocate for Injured Workers will present a webinar on the basics of the workers’ compensation system, including employees’ rights if they become injured or ill on the job. The one-hour presentation will also cover:

• Employees’ benefits under workers’ compensation
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