Strouse v. Town of Austerlitz

Appeal from an order of the Supreme Court (Nichols, J.), entered December 13, 2013 in Columbia County,

In 2008, defendant adopted various resolutions pursuant to Town Law §§ 200 and 202 authorizing substantial improvements to portions of Harrington Drive and Partridge Drive in the Town of Austerlitz, Columbia County and creating a special assessment district to fund such improvements. Plaintiff is the owner of three parcels of land located within a particular subdivision in the Town, including a landlocked and unimproved piece of property identified on the relevant tax map as Lot 28. Although Lot 28 does not front or abut either Harrington Drive or Partridge Drive, the tax map reflects that this parcel is subject to an existing — albeit apparently undeveloped — right-of-way that provides Lot 28 with legal access to Harrington Drive. For this reason, defendant included Lot 28 in the list of parcels benefitted by the planned improvements and subject to the special assessment.

According to plaintiff, although he “unwittingly” paid the first property tax bill that he received containing the $3,700 special assessment, it was not until he received his 2010 property tax bill in December 2009 that he first learned of the special assessment. Plaintiffs informal efforts to persuade defendant to remove Lot 28 from the special assessment district proved to be unsuccessful, prompting him to commence this action in September 2011 seeking similar relief. Defendant answered and raised various affirmative defenses, including lack of subject matter jurisdiction and the statute of limitations. Plaintiff thereafter moved to compel certain discovery, and defendant cross-moved to dismiss the complaint. Supreme Court, among other things, granted defendant’s cross motion, prompting this appeal.

Plaintiff primarily contends that Supreme Court erred in failing to address his due process and equal protection claims i.e., that defendant failed to provide him with adequate notice relative to the creation of the special assessment district and the corresponding assessment imposed thereunder and, further, selectively included Lot 28 within such district. Plaintiffs constitutional claims, however, were raised for the first time in his reply affidavit. Accordingly, these issues are not properly before us (see Matter of Johnson Elec. Constr. Corp. v New York State Dept. of Transp., 124 AD3d 1199 , 1200 [2015]; Jackson v Vatter, 121 AD3d 1588 , 1589 [2014]; 10 Cardinal Lane, LLC v N.K.T. Land Acquisitions, Inc., 117 AD3d 1133 , 1136 n 2 [2014]; Schissler v Athens Assoc., 19 AD3d 979 , 980 [2005]).

To the extent that plaintiff contends that Supreme Court

McCarthy, J.P., Lynch and Clark, JJ., concur.

Ordered that the order is affirmed, without costs.