121 Willow, LLC v. Bd. of Assessors of the Cnty. of Nassau

181 A.D.3d 587

121 N.Y.S.3d 132

In the Matter of 121 WILLOW, LLC, et al., respondents,

v.BOARD OF ASSESSORS OF the COUNTY OF NASSAU, et al., appellants.

2018–06420

Index No. 405561/17

Supreme Court, Appellate Division, Second Department, New York.

Argued - October 21, 2019

March 4, 2020

Jared A. Kasschau, County Attorney, Mineola, N.Y. (Nicholas Vevante, Robert F. Van der Waag, and Ann Margaret Barriga of counsel), for appellants.

Herman Katz Cangemi & Clyne, LLP, Melville, N.Y. (Andrew G. Cangemi and Jennifer D. Hower of counsel), for respondents.

RUTH C. BALKIN, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In tax certiorari proceedings pursuant to Real Property Tax Law article 7, the Board of Assessors of the County of Nassau and the Nassau County Assessment Review Commission appeal from an order of the Supreme Court, Nassau County (Anthony Marano, J.), entered April 19, 2018. The order granted the petitioners' motion to vacate a stipulation of settlement.

ORDERED that the order is affirmed, with costs.

The petitioners commenced these proceedings pursuant to Real Property Tax Law article 7 against the Board of Assessors of the County of Nassau and the Nassau County Assessment Review Commission (hereinafter ARC) challenging the real estate property tax assessments on their respective properties. The petitioners retained the law firm of Herman Katz Cangemi & Clyne, LLP (hereinafter HKCC), to prosecute the proceedings on their behalf. HKCC separately retained nonparty Paola Orsini to prosecute certain, different tax appeal proceedings, known as residential "Small Claims Assessment Review" or "SCAR" proceedings on behalf of HKCC clients. At some point, ARC sent Orsini a spreadsheet with proposed settlements of various real estate appeal proceedings, but the spreadsheet listed both SCAR and Real Property Law article 7 proceedings. Orsini agreed to settle all the proceedings on the spreadsheet, including the Real Property Law article 7 proceedings (hereinafter the stipulation of settlement). The petitioners thereafter moved to vacate the stipulation of settlement, arguing, inter alia, that Orsini did not have authority to settle the Real Property Law article 7 proceedings. The Supreme Court granted the motion. The Board of Assessors of the County of Nassau and ARC appeal. We affirm.

The petitioners established that Orsini did not have actual authority to settle the proceedings at issue. "A stipulation made by the attorney may bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation" ( Davidson v. Metropolitan Tr. Auth., 44 A.D.3d 819, 819, 844 N.Y.S.2d 359 ; see Hallock v. State of New York, 64 N.Y.2d at 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 ; Amerally v. Liberty King Produce, Inc., 170 A.D.3d at 638, 95 N.Y.S.3d 338 ; Wil Can [USA] Group, Inc. v. Shen Zhang, 73 A.D.3d 1166, 903 N.Y.S.2d 429 ; Matter of 259 Broadway Realty Corp. v. Incorporated Vil. of Amityville, 29 A.D.3d 596, 814 N.Y.S.2d 698 ; Matter of Byrne v. Nassau County Bd. of Elections, 307 A.D.2d 1053, 1053, 763 N.Y.S.2d 783 ). "Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent...