STATE OF NEW YORK
SUPREME COURT : CHAUTAUQUA COUNTY
_____________________________________________

NIAGARA MOHAWK,

Petitioner,

-vs- Index #H-9963

CITY OF DUNKIRK,

Respondent.
_____________________________________________
HELM, SHAPIRO, ANITO &
MCCALE, P.C. (Mark D.
Lansing, Esq. of Counsel)
for Petitioner
HANCOCK & ESTABROOK, LLP
(John R. Varney, Esq. of
Counsel) for Respondent
DECISION AND ORDER
GERACE, J.
Petitioner has brought an Article 7 Tax appeal from the 1994 assessment of its electric power plant located in the City of Dunkirk. The appeal involves substantially the same issues that were decided by this Court in Petitioner's tax appeal from the 1993 assessment. Petitioner's appeal of this Court's Decision is pending in the Appellate Division.

In the 1994 tax appeal before this Court, the Petitioner has applied for a motion for discovery of the members of the Dunkirk City Board of Assessment Review and Respondent's special counsel.

Petitioner's 1994 tax appeal is combined with an Article 78 proceeding for a declaratory judgment on several United States and New York State Constitutional grounds.

Respondents have filed cross-motions opposing discovery and for partial summary judgment to dismiss several of the causes of action in the petition.

Counsel for both parties have submitted extensive correspondence and memoranda of law to support the arguments of counsel heard on April 10, 1995.

The major issue raised in the oral arguments related to Petitioner's claim that Respondents failed to grant exemptions in the 1994 assessment to which it is entitled Petitioner also complains that Respondents had subjected Petitioners to needless demands for voluminous documents that Petitioners had in their possession. Respondents contended they required documents to determine whether Petitioners are entitled to claimed exemptions.

The central point of disagreement derives from the Respondent's 1993 assessment based upon an appraisal of $195,975,000 and continued in 1994 assessment, which Petitioners contend is grossly excessive as set out in their previous appeal to the Appellate Division.

In the hearing on the motions, Petitioners' counsel agreed Petitioner was entitled to certain exemptions for 1994 to be charged against and reduce the assessment of $195,975,000 (T. pgs. 52-54).
The claimed exemptions are as follows:
Wastewater Treatment Facility
(T. p. 53) $16,752,000

Sec. 485-B (T. p. 54) 1,181,500

Air Pollution Control Unit
(T. p. 54) 6,346,500

Air Pollution Control Unit
(T. p. 55) 10,171,500

____________

TOTAL $34,451,500

Counsel for Petitioner further stated that if these exemptions are agreed to, Petitioner would withdraw any claim to exemptions for air pollution control units 1 and 4 in the 1994 assessment but reserved its request to raise these in the 1995 assessment.

Respondent's counsel did not dispute the assessments but claimed the City is entitled to receive and review details of cost in support of exemptions and he indicated Respondents' willingness to enter into discussions with the Petitioner and receive proof with a view to granting exemptions.

On the basis of Petitioners' claims for exemptions, the 1994 assessment would be reduced to $161,523,500 ($195,975,00 - $34,451,500).

Some days after the hearing on April 10, 1995 the Court received a letter from Respondents' counsel that the parties were in negotiations to settle the exemptions entitlement.

Since then the Court has been barraged with faxes, letters photocopies and writings from both counsel continuing argumentation of matters that closed with the hearing on April 10, 1995.

The Court declines to be drawn into this ongoing fax and letter debate and concludes from the letters nothing other than the fact that the parties have failed to reach an agreement.

Accordingly, addressing the motion the court approves the exemptions claimed by Petitioner only on condition that certificates have been granted by the Department of Environmental Conservation. Respondents' objections to any certificates should be addressed to the Department of Environmental Conservation.

The Respondents are directed to reduce the 1994 assessment by $34,451,500 insofar as DEC certificates have been issued to the Petitioners and in the event 1994 taxes have been received from the Petitioner based upon the assessment of $195,975,000 the Respondents are directed to refund any excess resulting from the reduced 1994 assessment.

The questions to be resolved in the 1994 assessment appeal are largely the same questions pending before the Appellate Division in Petitioner's appeals. Petitioner bases its contentions as to the value of its real property subject to assessment on the same estimates that the court rejected in finding it had not proved a prima facie case in the 1993 appeal.

Regarding the problems confronting the Respondents in the 1994 assessment;
a) Respondent has undertaken resolution of all of the taxable property as suggested by this Court in its 1993 previous opinion, and raised by Petitioner's objections;
b) Respondents have requested SBEA to separately provide an advisory appraisal of Petitioner's property;
c) Respondent has no other reliable assessment date than the contested 1993 appraisal which is subject to satisfaction or revision by the information resulting from (a) and (b).
The matters pending on Petitioner's appeals to the Appellate Division involve the same parties and substantially the same issues raised in the instant case. Moreover, as Warren's Weed New York Real Property, Taxation and Assessment, Sec. 5.03(1 in Judicial Review of Assessment notes:

"Although, as a practical matter, proceedings tend to be lengthy, often including assessments for several years before the cases are ready for trial, Article 7 proceedings and appeals therefrom 'have preference over all other civil actions and proceedings in all courts'." (R.P.T.C. Sec. 700(3).


Other than the decision and order set out above, the Court elects to stay any determination of the present petition and the motion, including the Article 78 proceeding addressed to Constitutional issues, pending the decision of the Appellate Division in Petitioner's appeals or completion of the Citywide revaluation of all real property plus the SBEA advisory appraisal whichever occurs first; and
The City is hereby granted forty-five (45) days in which to review, amend and/or confirm its 1993 and 1994 assessments in the in the light of the Appellate Division's decision(s) and/or the citywide revaluation;
Petitioner to have forty-five (45) days therefrom to respond or initiate such further motion(s it then deems appropriate; and
The Court thereafter shall lift the stay and proceed with the matters therein stayed.

The Court grants this stay cognizant that the proceedings here have a common identity with the matters on appeal before the Appellate Division, that the decision (as) of the Appellate Court would be determinative of the proceedings before this Court; to prevent a multiplicity of suits, avoid the risk of inconsistent adjudications and potential waste of judicial resources not to mention unnecessary legal expense to both parties, an expense that taxpayers and rate payers would ultimately be forced to pay.

"CPLR 2201 is a general provision recognizing the power to grant stays that courts traditionally have exercised in actions pending before them. . . Apart from this statute, every court has inherent power to stay its own proceedings and control the course of a pending action. . . (Halloran v. Halloran, 16 AD2d 562, 555 NYS2d 139 [2nd Dept. 1990]; David Belasco Co. v. Klas, 95 AD 74, 90 NYS 593 (1st Dept. 1904; Evans and Stallreen, Inherent Powers, NY2J; Nov. 24, 1982, p. 6., col. 1)." Weinstein-Kove-Miller, CPLR Manual Revised Edition, O.G. Chase, Sec. 15.09. See also, El Greco Inc. v. Cohn, 139 AD2 615, 527 NYS2d 256, 257 (2nd Dept. 1988), McKinney's Consolidated Laws of New York, CPLR, Prof. Siegel's Practice Commentary C220l:11.



Dated: May 23, 1995
Mayville, New York


__________________________________
HON. JOSEPH GERACE
Supreme Court Justice