SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT).
The Second Department, modifying Supreme Court, determined petitioner’s motion for leave to discontinue its tax certiorari proceeding (seeking lower property tax assessments) with respect to one of its properties was properly denied because respondent town’s ability to defend would be prejudiced. However, Supreme Court should not have order the merger of two of the tax lots because neither party had requested that relief:
A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results … .
Here, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend the assessment on the remaining parcel.
However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing the parties to merge two of the subject tax lots. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … . Here, neither party sought merger of the subject lots or similar relief, and merger of those lots could potentially be prejudicial to the petitioner. Matter of Catherine Commons, LLC v Town of Orangetown, 2018 NY Slip Op 00287, Second Dept 1-17-18
CIVIL PROCEDURE (DISCONTINUANCE, SUA SPONTE RULING, SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/DISCONTINUANCE (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/SUA SPONTE RULING (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/REAL PROPERTY TAX (TAX CERTIORARI PROCEEDINGS, SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/PROPERTY TAX ASSESSMENTS (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))/TAX CERTIORARI PROCEEDINGS (SUPREME COURT PROPERLY DENIED PETITIONER’S MOTION TO DISCONTINUE THE PROPERTY TAX CERTIORARI PROCEEDING WITH RESPECT TO ONE OF THE TAX PARCELS BECAUSE THE TOWN’S DEFENSE COULD BE PREJUDICED, HOWEVER SUPREME COURT SHOULD NOT HAVE ORDERED THE MERGER OF TWO TAX PARCELS BECAUSE NEITHER PARTY REQUESTED THAT RELIEF (SECOND DEPT))