Corvetti v. Town of Lake Pleasant

State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 12, 2017 522299

________________________________

DIANE CORVETTI,

Appellant-

Respondent,

v

TOWN OF LAKE PLEASANT et al., MEMORANDUM AND ORDER

Respondents-

Appellants.

(And Six Other Related Actions.)

________________________________

Calendar Date: November 22, 2016

Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

__________

Donohue, Sabo, Varley & Huttner, LLP, Albany (Kenneth G.

Varley of counsel), for appellant-respondent.

Murphy, Burns, Barber & Murphy, LLP, Albany (James J. Burns

of counsel), for respondents-appellants.

__________

Egan Jr., J.

Cross appeals (1) from an order of the Supreme Court

(Aulisi, J.), entered September 16, 2015 in Hamilton County,

which, among other things, partially granted defendants' motion

for summary judgment dismissing the complaints, and (2) from an

order of said court, entered September 14, 2015 in Hamilton

County, which, upon reargument, among other things, reinstated

plaintiff's complaint in action No. 1.

Plaintiff owns three parcels of land located in the Town of

Lake Pleasant, Hamilton County – a 51.6-acre parcel upon which

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her home is located and two additional parcels consisting of

approximately 204 acres and 68 acres. A portion of plaintiff's

residential parcel and each of the remaining two parcels are

subject to a forest management plan and receive a tax exemption

under RPTL 480-a. Plaintiff has long disputed the annual tax

assessments imposed by defendant Town of Lake Pleasant, resulting

in repeated, protracted and often successful litigation (see

Matter of Corvetti v Winchell, 75 AD3d 1013 [2010], lv denied 16

NY3d 701 [2011]; Matter of Corvetti v Winchell, 51 AD3d 47

[2008]; Corvetti v Town of Lake Pleasant, 227 AD2d 821 [1996];

Matter of Corvetti v Board of Assessors of Town of Lake Pleasant,

210 AD2d 667 [1994], lv denied 85 NY2d 802 [1995]).

In 2001, plaintiff and her then husband, Richard Corvetti,

commenced the first of the seven actions now before us against

the Town, defendant Town of Lake Pleasant Board of Assessment

Review (hereinafter BAR), defendant Edward Winchell (then the

Town's assessor) and various individual members of the BAR,

alleging that, beginning in 1996 and continuing through 2000, the

named defendants had systematically overvalued the subject

properties, thereby violating plaintiff's and Corvetti's equal

protection and due process rights.1 The named defendants

answered and raised, among other defenses, collateral estoppel

and absolute or qualified immunity. Similar civil rights actions

were commenced in 2002, 2003, 2004, 2005, 2006 and 2010 against,

among others, the Town, and additional defendants were named,

including – insofar as is relevant here – defendant Frank Mezzano

(individually and in his capacity as Town Supervisor), defendant

Victoria Buyce (individually and in her capacity as Town

Assessor)2 and certain of the newly appointed BAR members.

Following joinder of issue and discovery, defendants moved

in January 2014 for summary judgment dismissing all seven of

1

Corvetti surrendered his rights to the relevant

properties when he and plaintiff divorced in 2008, and his name

does not appear in either the caption of the orders that are the

subject of these appeals or the corresponding notices of appeal.

2

Buyce succeeded Winchell as the assessor in 2005.

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plaintiff's complaints. Plaintiff opposed this motion,

contending, among other things, that defendants violated her

civil rights under 42 USC § 1983. By order dated July 18, 2014

and entered September 16, 2015 (hereinafter the first order),

Supreme Court dismissed action No. 1 in its entirety, finding

that it presented the same issues that were addressed and decided

in a prior CPLR article 78 proceeding and, hence, the subject

action was barred by collateral estoppel. Supreme Court also

dismissed all causes of action against the BAR (finding that the

BAR was entitled to absolute or qualified governmental immunity),

Mezzano and all remaining defendants who were named in their

individual capacities, as well as plaintiff's claims for punitive

damages. Finally, the court found questions of fact as to

plaintiff's due process and equal protection claims with respect

to the Town and the assessors (in their official capacities) and

denied defendants' motion for summary judgment to that extent.

In August 2014, plaintiff moved to reargue, seeking

reinstatement of action No. 1 and all claims against the BAR and

the individually named defendants, as well as her claims for

punitive damages, and defendants cross-moved to reargue, seeking

dismissal of all remaining claims against them. Thereafter, by

order entered September 14, 2015 (hereinafter the second order),

Supreme Court partially granted plaintiff's motion – reinstating

action No. 1 and barring action No. 2 instead, reinstating

plaintiff's claims against Winchell and Buyce in their individual

capacities and reinstating plaintiff's punitive damages claims

except as to action No. 2; the court denied defendants' cross

motion in its entirety. Plaintiff now appeals from Supreme

Court's first order insofar as it "dismissed [a]ction No. 1 in

it[s] entire[t]y[,] dismissed plaintiff's claim for punitive

damages . . . and dismissed plaintiff's claims against [the BAR,

Mezzano] and the individually named defendants," as well as from

so much of Supreme Court's second order as "dismissed [a]ction

No. 2 and denied plaintiff's application for reargument with

respect to [the] dismissal of her claims against the [BAR]."

Defendants, in turn, cross-appeal from Supreme Court's first

order to the extent that it partially denied their motion for

summary judgment dismissing all seven complaints, as well as from

Supreme Court's second order insofar as it partially granted

plaintiff's motion to reargue and denied defendants' cross motion

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to reargue in its entirety.

Initially, we agree that the claims asserted by plaintiff

in action No. 2 relative to her 2001 assessment are identical to

the claims raised in a prior CPLR article 78 proceeding and,

therefore, action No. 2 is barred by principles of collateral

estoppel. "Collateral estoppel, or issue preclusion, precludes a

party from relitigating in a subsequent action or proceeding an

issue clearly raised in a prior action or proceeding and decided

against that party, whether or not the tribunals or causes of

action are the same. The doctrine applies if the issue in the

second action is identical to an issue which was raised,

necessarily decided and material in the first action, and the

plaintiff had a full and fair opportunity to litigate the issue

in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93

NY2d 343, 349 [1999] [internal quotation marks, ellipsis and

citations omitted]; see Town of Fort Ann v Liberty Mut. Ins. Co.,

137 AD3d 1389, 1390 [2016]). "This rule applies to claims

actually litigated or that could have been litigated, and despite

the fact that the claims are based on a different theory or seek

a different remedy" (Thomas v City of New York, 239 AD2d 180, 180

[1997] [citations omitted]). When this defense is raised, "[t]he

burden rests upon the proponent of collateral estoppel to

demonstrate the identicality and decisiveness of the issue, while

the burden rests upon the opponent to establish the absence of a

full and fair opportunity to litigate the issue in the prior

action or proceeding" (Parker v Blauvelt Volunteer Fire Co., 93

NY2d at 349 [internal quotation marks, brackets and citation

omitted]; see Gadani v DeBrino Caulking Assoc., Inc., 86 AD3d

689, 691 [2011]).

Here, a comparison of the allegations contained in the

petition filed in conjunction with the 2001 CPLR article 78

proceeding with the allegations set forth in the complaint filed

in action No. 2 reveals that plaintiff asserted virtually

identical constitutional claims in each pleading – specifically,

that the manner in which her properties were assessed violated

her equal protection and due process rights and gave rise to a

claim for damages under 42 USC § 1983. While it is true that the

judgment rendered by Supreme Court in the context of resolving

the CPLR article 78 proceeding did not expressly address the

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merits of the constitutional claims asserted therein, Supreme

Court was well aware of plaintiff's arguments on this point and,

in granting the named respondents' motion for summary judgment

dismissing that proceeding, necessarily determined that the

underlying constitutional claims were lacking in merit. Hence,

we are satisfied that "all of the factual issues dispositive of

the constitutional claims being raised in . . . action [No. 2]

were necessarily decided [by Supreme Court] in the prior article

78 proceeding" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at

350; compare O'Donnell v Ferguson, 23 AD3d 1005, 1007 [2005]; Liu

v New York City Police Dept., 216 AD2d 67, 68 [1995], lv denied

87 NY2d 802 [1995], cert denied 517 US 1167 [1996]). As the

named defendants in action No. 2 met their initial burden of

demonstrating "the identicality and decisiveness of the issue" at

hand, it was incumbent upon plaintiff to show that she lacked "a

full and fair opportunity to litigate [that] issue" (Parker v

Blauvelt Volunteer Fire Co., 93 NY2d at 349 [internal quotation

marks and citation omitted]), which she failed to do.

Accordingly, Supreme Court did not err in finding that action No.

2 was barred by principles of collateral estoppel.3

3

In light of our conclusion in this regard, plaintiff's

arguments relative to the dismissal of her claims against

Mezzano, who was named as a defendant only in action No. 2, are

academic. Were we to address the merits of her argument, we

would find that plaintiff's claims against Mezzano were properly

dismissed. According to plaintiff, Mezzano, who served as Town

Supervisor from 1993 to 2009, violated her constitutional rights

by failing to remove Winchell, who was the Town's appointed

assessor from October 1990 to December 2005, from his position

during the relevant time period or to otherwise prevent Winchell

from overvaluing her properties. The flaw in plaintiff's

argument on this point is that Mezzano was not Winchell's

supervisor; rather, Winchell served at the pleasure of the Town

Board (see Town Law §§ 20, 24; RPTL 310). Accordingly, inasmuch

as Mezzano lacked the authority to singlehandedly remove Winchell

from office or otherwise curtail his allegedly impermissible

activities, plaintiff's claims against Mezzano were properly

dismissed.

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We reach a similar conclusion regarding the dismissal of

all claims against the BAR and its individual members, as we

agree with Supreme Court that, as a quasi-judicial body, the BAR

is entitled to absolute immunity. The principles governing the

application of absolute or qualified immunity were summarized by

the Court of Appeals in Arteaga v State of New York (72 NY2d 212

[1988]). As the Court explained, "[w]hether an action receives

only qualified immunity, shielding the government except when

there is bad faith or the action taken is without a reasonable

basis or absolute immunity, where reasonableness or bad faith is

irrelevant, requires an analysis of the functions and duties of

the particular governmental official or employee whose conduct is

in issue. The question depends not so much on the importance of

the actor's position or its title as on the scope of the

delegated discretion and whether the position entails making

decisions of a judicial nature – i.e., decisions requiring the

application of governing rules to particular facts, an exercise

of reasoned judgment which could typically produce different

acceptable results" (id. at 216 [internal quotation marks and

citations omitted]).

Consistent with the provisions of RPTL 523, the Town was

required to have a board of assessment review (see RPTL 523 [1]

[a]), and its individual members, in turn, were required to

attend mandated training (see RPTL 523 [1] [d]; [2]). Here, in

accordance with its appointed duties, the BAR had a statutory

obligation to "fix the place or places for the hearing of

complaints in relation to assessments" (RPTL 525 [1]) and, on the

date required by law, to "meet to hear complaints in relation to

assessments" (RPTL 525 [2] [a]). Upon convening for the required

hearing, the BAR could "administer oaths, take testimony and hear

proofs in regard to any complaint and the assessment to which it

relates" and, further, could "require the person whose real

property is assessed, or his or her agent or representative, or

any other person, to appear before [it] and be examined

concerning such complaint, and to produce any papers relating to

such assessment" (RPTL 525 [2] [a]). "Minutes of the examination

of every person [so] examined" were required to "be taken and

filed in the office of the . . . town clerk" (RPTL 525 [2] [a]),

and the BAR thereafter was required to "determine the final

assessed valuation or taxable assessed valuation . . . of the

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real property of each complainant" (RPTL 525 [3] [a]), "prepare

and verify a statement showing the changes determined to be made

by them in the assessments" and notify each complainant of its

determination and the time within which to seek judicial review

thereof (RPTL 525 [4]). In light of these statutory mandates, it

is apparent that the BAR's determinations constitute decisions of

a quasi-judicial nature and, hence, the BAR (and its individual

members) are entitled to absolute immunity (see generally Matter

of Town of Greenville, Orange County v New York State Bd. of Real

Prop. Servs., 251 AD2d 788, 789 [1998]).

With respect to the alleged violation of plaintiff's equal

protection and due process rights, plaintiff argues that, in the

context of its second order, Supreme Court properly reinstated

her 42 USC § 1983 claims against Winchell and Buyce in their

individual capacities, as well as her claim for punitive damages.

Defendants, in turn, argue that such claims should be dismissed

in their entirety – citing the findings made by Supreme Court in

its first order, wherein the court concluded that plaintiff

failed to demonstrate that Winchell and Buyce were personally

involved in the alleged deprivation of her constitutional

rights.4 Defendants further contend, in the context of their

cross appeal, that such claims should be dismissed against the

Town.

4

In the first order, Supreme Court found that questions of

fact existed with respect to plaintiff's due process and equal

protection claims, but dismissed all causes of action against

each of the individually named defendants – leaving intact only

plaintiff's constitutional claims against the Town and the

assessors (in their official capacities). In so doing, Supreme

Court expressly noted that plaintiff's allegations as to

Winchell's and Buyce's personal involvement in the alleged

deprivation of her constitutional rights were conclusory and

unsupported by the record – a finding that was equally fatal to

plaintiff's claim for punitive damages. Upon reargument, Supreme

Court – without explanation – reinstated plaintiff's 42 USC

§ 1983 and punitive damages claims against Winchell and Buyce,

noting only that such claims could be pursued against municipal

defendants who were sued in their individual capacities.

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"When a taxpayer demonstrates that he or she has been the

victim of an aggravated pattern of misuse of the taxing power, a

42 USC § 1983 due process claim has been stated" (Abbott v Town

of Delaware, 238 AD2d 868, 870 [1997] [internal quotation marks

and citations omitted], lv denied 90 NY2d 805 [1997]; see 423 S.

Salina St. v City of Syracuse, 68 NY2d 474, 484 [1986], appeal

dismissed and cert denied 481 US 1008 [1987]; Way v City of

Beacon, 96 AD3d 829, 831 [2012]). Similarly, a taxpayer's

allegation that a municipality has selectively reassessed his or

her property will give rise to an equal protection claim under 42

USC § 1983 (see Matter of Resnick v Town of Canaan, 38 AD3d 949,

952 [2007]; Abbott v Town of Delaware, 238 AD3d at 870). More

specifically, "[w]hen a defendant sued for discrimination under

[42 USC § 1983] is a municipality, the plaintiff is required to

show that the challenged acts were performed pursuant to a

municipal policy or custom. The plaintiff need not identify an

express rule or regulation, but can show that a discriminatory

practice of municipal officials was so persistent or widespread

as to constitute a custom or usage with the force of law, or that

a discriminatory practice of subordinate employees was so

manifest as to imply the constructive acquiescence of senior

policy-making officials" (Littlejohn v City of New York, 795 F3d

297, 314-315 [2015] [internal quotation marks and citations

omitted]). A local government may not, however, be sued under 42

USC § 1983 under a respondeat superior theory (see Shelton v New

York State Liq. Auth., 61 AD3d 1145, 1148 [2009]), nor may it be

sued "for a constitutional injury inflicted by employees or

agents [who were] not acting pursuant to [an] official municipal

policy or custom" (315-321 Realty Co. Assoc., LLC v City of New

York, 33 AD3d 509, 509 [2006]).

With respect to plaintiff's constitutional claims against

the Town, the underlying complaints allege – in a fleeting and

conclusory fashion – that Winchell and Buyce acted "with the full

knowledge" of the Town and, therefore, their allegedly

impermissible acts necessarily "constitute[d] the official policy

of the Town." According to plaintiff, the existence of this

official policy is further evidenced by the fact that the

assessed value of her properties increased in each of the subject

revaluation years. At the summary judgment stage of this

litigation, however, plaintiff must do more than merely allege a

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pattern of discrimination.

Here, in support of their motion for summary judgment,

defendants established through, among other things, the

examination before trial testimony of and affidavits tendered by

Winchell and Buyce that each of the challenged assessments was

the product of a Town-wide revaluation process that, in turn, was

conducted by an outside consultant utilizing an established,

mass-appraisal methodology – a process defined by the consultant

as "a systematic way [of] apprais[ing], on a mass basis, every

property in the [T]own as of a common valuation date." Such

proof further established that, although the assessed value of

plaintiff's parcels indeed initially increased in each of the

subject revaluation years,5 Winchell and Buyce – after visiting a

sampling of properties to ensure that the consultant's valuations

were consistent with the actual characteristics thereof –

thereafter adopted the fair market value assigned by the

consultant without any adjustment thereto, with Winchell

believing that the value assigned in each of the subject years

was reasonable. Buyce attested to following a similar procedure

during the time that she was the Town's assessor and expressly

averred that plaintiff's properties "were reassessed [in] the

same [manner] as every other property in the Town."

In opposition, although plaintiff highlighted perceived

flaws in the mass-appraisal methodology, took issue with the

manner in which Winchell and Buyce applied (or refused to apply)

various factors relative thereto and detailed what she regarded

as a long-standing pattern of overvaluing her properties,

plaintiff's proof – in our view – fell short of raising a

question of fact as to whether the Town, through Winchell and

Buyce, engaged in "a discriminatory practice . . . [that] was so

persistent or widespread as to constitute a custom or usage with

the force of law" (Littlejohn v City of New York, 795 at 315

[2015] [internal quotation marks and citations omitted]). Absent

5

As noted previously, the bulk of plaintiff's assessments

over the years were reduced either by stipulation, settlement,

adjustment by the BAR or as a result of RPTL article 7

proceedings.

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an established policy or custom, and inasmuch as the Town cannot

be vicariously liable for the acts of Winchell and Buyce, Supreme

Court should have granted defendants' motion for summary judgment

dismissing plaintiff's 42 USC § 1983 claims against the Town.6

Similarly, inasmuch as punitive damages are not available against

a municipality (see Cardoza v City of New York, 139 AD3d 151, 167

n 9 [2016]; Dorian v City of New York, 129 AD3d 445, 445-446

[2015]; Rekemeyer v Cerone, 252 AD2d 22, 26 [1999]), plaintiff's

claims against the Town in this regard also must be dismissed.

Turning to the liability of Winchell and Buyce in their

individual capacities, an individual may be held liable under 42

USC § 1983 only if he or she was "personally involved in the

alleged deprivation" of the plaintiff's constitutional rights

(Littlejohn v City of New York, 795 F3d at 314 [internal

quotation marks and citations omitted]). To that end, "it [is]

incumbent upon [the] plaintiff to allege particular facts

indicating that each of the individual defendants was personally

involved in the deprivation of the plaintiff's constitutional

rights; mere bald assertions and conclusions of law do not

suffice" (Shelton v New York State Liq. Auth., 61 AD3d at 1148

[internal quotation marks, emphasis, brackets and citations

omitted]). "Personal involvement can be established by showing

that: (1) the defendant participated directly in the alleged

constitutional violation, (2) the defendant, after being informed

of the violation through a report or appeal, failed to remedy the

wrong, (3) the defendant created a policy or custom under which

unconstitutional practices occurred, or allowed the continuance

6

Our prior decisions involving plaintiff's properties are

not to the contrary. In addition to pertaining to entirely

different assessment years than the ones at issue here, Corvetti

v Town of Lake Pleasant (227 AD2d 821 [1996], supra) addressed

the viability of the asserted civil rights claim in the context

of a motion to dismiss (as opposed to the instant summary

judgment motion), and Matter of Corvetti v Board of Assessors of

the Town of Lake Pleasant (210 AD2d 667 [1994], supra) concerned

whether the named respondents engaged in a pattern of retaliatory

and discriminatory conduct for purposes of an additional

allowance under RPTL 722 (2).

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of such a policy or custom, (4) the defendant was grossly

negligent in supervising subordinates who committed the wrongful

acts, or (5) the defendant exhibited deliberate indifference by

failing to act on information indicating that unconstitutional

acts were occurring" (Littlejohn v City of New York, 795 F3d at

314 [internal quotation marks, ellipsis and citation omitted];

see generally Shelton v New York State Liq. Auth., 61 AD3d at

1149).

As noted previously, Winchell and Buyce maintained that

they relied heavily (and often exclusively) upon the consultant's

computations in determining the appraised value to be assigned

to, among other properties, plaintiff's residential parcel –

essentially taking the position that they lacked the expertise to

challenge the valuations determined by the consultant, as the

result of which the values produced through the revaluation

process "for each Town property, including [plaintiff's]

properties, were accepted without change . . . and transferred to

the Town's tentative tax rolls." In light of the procedures

employed, defendants contend, Winchell and/or Buyce lacked the

opportunity to manipulate plaintiff's assessments in the fashion

alleged.

As a starting point, there is no question that, despite

their reliance upon and deference to the subject consultant, the

individual assessors ultimately were responsible for the values

assigned to each property within the Town and, more to the point,

retained certain input and/or discretionary authority with

respect to the valuation process. For example, Winchell

acknowledged at his examination before trial that he collected

and entered certain data for the appraisal model, including

property size and building style, size and condition.

Additionally, the record reflects that both Winchell and Buyce

had the ability to adjust certain factors applicable to the

assessment formula, including the location multiplier, the

influence factor and the percent good factor.7 Indeed, both

7

The percent good factor measures the depreciation

attributable to a building, which, in turn, is measured by the

effective age of the structure.

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Winchell and Buyce acknowledged applying a positive influence

factor to plaintiff's property – thereby increasing the assessed

value – based upon, among other things, certain topographical

features, and Winchell admitted that he also adjusted the percent

good factor for plaintiff's property. Hence, there is little

question that Winchell and Buyce indeed were personally involved

– to one degree or another – in valuing plaintiff's properties.

Without more, however, personal involvement in the valuation

process does not automatically translate into a deprivation of

plaintiff's constitutional rights.

With respect to the issue of improper motive,

discriminatory or retaliatory conduct and/or malicious intent,

the record makes clear that the factors over which Winchell and

Buyce retained control were largely subjective, and the manner in

which such factors were applied fell squarely within Winchell's

and Buyce's essentially unfettered discretion. For these

reasons, it was incumbent upon defendants to make a prima facie

showing, in the context of their motion for summary judgment,

that — with respect to Winchell and Buyce — such factors were

applied fairly and evenhandedly or, at the very least, that there

was a reasonable explanation for treating allegedly similar

properties within the Town in a seemingly disparate fashion.

This they failed to do. Without belaboring the point, suffice it

to say that defendants' proof, which relied heavily upon the

affidavits and examination before trial testimony of Winchell and

Buyce, fell short of establishing that the assessors valued

plaintiff's property in a nondiscriminatory fashion and,

therefore, defendants failed to demonstrate their entitlement to

summary judgment in this regard. Moreover, even assuming that

defendants did meet their initial burden on the subject motion,

plaintiff's proof in opposition, including the affidavits

tendered by her expert and her former husband,8 as well as the

8

Plaintiff's former husband averred that, after reaching a

settlement of certain issues with the Town in 1997, he

encountered Winchell in a local parking lot and expressed the

hope that they would be able to "bury the hatchet." In response,

Winchell purportedly indicated that "he disagreed with the

lawyers and was going 'to put it right back up'" at the next

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valuation data submitted for other allegedly similarly situated

properties, was sufficient to raise a question of fact on this

point. Accordingly, Supreme Court properly reinstated the civil

rights (and punitive damages) claims against Winchell and Buyce.

The parties' remaining arguments, to the extent not specifically

addressed, have been examined and found to be lacking in merit.

Garry, J.P., Rose, Clark and Mulvey, JJ., concur.

ORDERED that the orders are modified, on the law, without

costs, by reversing so much thereof as denied defendants' motion

for summary judgment dismissing the complaints against defendant

Town of Lake Pleasant; motions granted to said extent and

complaints against said defendant dismissed; and, as so modified,

affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

revaluation," an apparent reference to raising the assessment on

the subject properties. Although Winchell denied threatening to

raise the assessment at the next revaluation, this conflicting

proof presents a question of fact as to whether plaintiff's

assessment was raised in retaliation for pursuing litigation

against certain of the named defendants.