ORDERED, that the motion (motion sequence number 002) by Defendant TOWN OF SOUTHAMPTON to dismiss the complaint is granted; and it is further

ORDERED, that the motion (motion sequence number 003) by plaintiffs for an expedited decision and a preliminary injunction is denied as moot in light of the decision on motion sequence number 002 dismissing the action.

PROCEDURAL HISTORY

Plaintiffs commenced this action seeking a judgment declaring that the Final Assessment Roll (the "Roll") of the TOWN OF SOUTHAMPTON (the "TOWN") was invalid and enjoining the TOWN from using the assessments contained in the Roll for the purposes of calculating the real property taxes to be imposed for 2006-2007. Defendant has moved to dismiss the complaint pursuant to CPLR §3211(a)(2) and (7) on the ground that it fails to state a cause of action upon which relief can be granted. In response to the motion, Plaintiffs served a Second Amended Complaint which Defendant has rejected pursuant to CPLR §3025. Plaintiffs subsequently moved by Order to Show Cause (MAYER, J.) for an Order seeking, inter alia, an expedited decision on the Motion to [*2]Dismiss; and a preliminary injunction. Plaintiff's application for a temporary restraining order enjoining and restraining Defendant from using the 2006 Final Assessment Roll for the purpose of calculating its 2006-2007 real property taxes, was denied.

In the case at bar, it is clear that Plaintiffs amended their complaint not once, but twice and without leave of the court. Although the first amended complaint was served and filed pursuant to a stipulation of the parties, there was no such agreement with regard to the Second Amended Complaint. In fact, Plaintiffs unilaterally amended the complaint to attempt to change their theory of the case in response to Defendant's motion to dismiss. To do so, Plaintiffs, pursuant to CPLR §3025(b), should have requested leave of the Court. The Court rejects Plaintiffs constrained interpretation of CPLR §3025, which they state authorizes them to serve the second amended pleading without leave or a stipulation because the first amended complaint was served by stipulation.

Here, the Second Amended Complaint was served more than twenty days after service of the first amended complaint and after the motion to dismiss it was served, thus, was untimely. However, in the interest of judicial economy, the Court will consider Plaintiffs' request as one for leave to serve a second amended complaint. As such, and because Defendant has had a full opportunity to challenge the merits of the Second Amended [*4]Complaint, the Court will grant leave and consider it served and filed nunc pro tunc as of the date of the its service of the Order to Show Cause on November 24, 2006.

The Court notes however, that CPLR §3211(f) did not extend plaintiffs' time to serve an amended complaint as of right without leave. Rather, that provision would serve to extend defendant's time to serve an Answer, should the Court decline to grant the motion to dismiss.

MOTION TO DISMISS

Defendant moves to dismiss on the ground that the Complaint fails to state a cause of action upon which relief can be granted. In the Second Amended Complaint, Plaintiff argues that RPTL §102(12-a) and RPTL §305(2) requires that the Assessor review each and every property in the Town before he/she could make any adjustment to the Roll. Defendant argues that RPTL §305(2) only requires that the Assessor, in determining the assessment roll, insure that all properties are assessed at a uniform percentage of value. Moreover, since, based upon empirical evidence, the Assessor decided an annual adjustment of commercial properties was not warranted, defendant argues that it satisfied the mandates of RPTL §305(2).

In response, Plaintiffs essentially argue that RPTL §102(12-a), the definition section of the RPTL, requires that the Assessor "in an update year [it] must make a systematic review of the assessments of all locally assessed property" before it can include the updates in the Assessment Roll. Palomino Affirmation in Support of Order to Show Cause at ¶30.

THE REAL PROPERTY TAX LAW

RPTL §102 is the definition section of the Real Property Tax Law. Subdivision 12-a of that section states:

"Revaluation", "reassessment" or "update" means a systematic review of the assessments of all locally assessed properties, values as of the valuation date of the assessment roll containing those assessments, to attain compliance with the standard of assessment set forth in subdivision two of section three hundred five of this chapter.

RPTL §305(2) provides in relevant part that "All real property in each assessing unit shall be assessed at a uniform percentage of [*5]value (fractional assessment) ".

Plaintiffs argue that when these two provisions are read together, it imposes a mandate that the Assessor must conduct a revaluation, reassessment or update of all properties within the Town, rather than only certain classes of properties, i.e., residential vs. commercial properties. Thus, Plaintiffs assert that since only residential properties were revalued, that the Assessor exceeded his authority and the entire Assessment Roll is illegal and invalid.

Defendant relies on Mundinger v. Assessor of City of Rye, 187 AD2d 594, 590 NYS2d 122 (2d Dept. 1990) in support of its claim that it was not required to reassess all properties. In Mundinger, the Petitioners were the owners of waterfront real property and had been notified by the Assessor that due to the rapid rate of appreciation of such property, that the properties had been reassessed. Petitioners challenged the reassessment on the ground that this "selective reassessment" discriminated against waterfront property. The Supreme Court denied Respondents' motion to dismiss and Petitioners' cross-motion for summary judgment and the Appellate Division affirmed. The Court recognized that "a system of selective reassessment that has no rational basis in law violates the equal protection provisions of the constitutions of the Unites States and the State of New York" but that the "reassessment program in the case at bar would be justified by the appellants' obligation to tax real property at a uniform percentage of value if waterfront residential property appreciated at a higher rate than nonwaterfront residential property" (citing RPTL 305). There, the Court denied the motion for summary judgment on the ground that the conflicting affidavits presented raised a triable issue of fact as to whether the waterfront properties appreciated at a higher rate than the nonwaterfront properties. Additionally, as cited by Defendant, the New York State Office of Real Property Services ("ORPS"), has opined that an assessor may change the assessment of a property within the assessment unit without reassessing every property in the jurisdiction, provided that such action is necessary to maintain a uniform percentage of assessed value as required by RPTL §305(2). 10 Op. Counsel SBRPS No. 60. See, Bock v. Town/Village of Scarsdale, 11 Misc 3d 1052(A), 814 NYS2d 889 (Sup. Ct. Westchester Co., 2006).

Here, although Plaintiffs argue that they are purely alleging a statutory violation, it is evident that their claim of a violation of RPTL §305(2) is inextricably linked to a claim of impermissible selective reassessment. It is of no moment that Plaintiffs have removed the words "selective" from their Second [*6]Amended Complaint; the import of the cause of action is the same; the gravamen of the action is that Defendant has selectively reassessed the residential property in violation of the constraints of the Real Property Tax Law. Plaintiffs' amendment to the complaint does not insulate the claim from a motion to dismiss. Nor is the Court inclined to treat the application as a motion for summary judgment.

It is well settled that on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR §3211(a)(7), the Court must accept as true the facts alleged in the complaint, accord the Plaintiffs the benefit of every favorable inference and determine only whether the facts fit within any cognizable legal theory. Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409, 754 NE2d 154, 729 NYS2d 429 (2001). The motion to dismiss must be denied, if the factual allegations, taken from the four corners of the complaint, manifest any cause of action at discernible at law. Maldonado v. Olympia Mechanical Piping, 8 AD3d 448, 777 NYS2d 730 (2d Dept. 2004). Moreover, it is widely recognized that a tax assessment by an assessor is presumptively valid, and one challenging the assessment must come forward with substantial evidence to rebut the presumption. FMC Corp., v. Unmack, 92 NY2d 179, 699 NE2d 893, 677 NYS2d 269 (1998). Although ordinarily, challenges to assessments on the ground that they are illegal, irregular, excessive or unequal are made in a RPTL Article 7 tax certiorari proceeding, where the challenge is based upon the method employed in the assessment of several properties, a tax payer may mount a collateral attack on the taxing authority's action through a declaratory judgment or Article 78 proceeding. Greens of North Hills Condominium v. Board of Assessors of County of Nassau, 202 AD2d 417, 608 NYS2d 694 (2d Dept. 1994).

Application of these principles to the case at bar illustrates why the Second Amended Complaint must be dismissed. The bare allegations that the Assessor annually reassessed residential properties in the town without a concomitant annual revaluation of the commercial properties in the town in violation of RPTL §§102(12-a) and 305(2) and thus resulting in an invalid Final Tax Roll, is insufficient to state a cause of action upon which relief can be granted. There is no authority for plaintiffs' allegation that the "systematic review" contained within RPTL §102(12-a) mandates a total reassessment of all properties as part of the updating of the assessment roll. The facial defect and incongruity in the Second Amended Complaint is readily apparent: While Plaintiffs admit that the Assessor "found that the values of commercial properties were stable, that is not appreciating" and thus not warranting of a reassessment, they then argue that by failing to reassess said properties he (the Assessor) "made it [*7]impossible to achieve a uniform percentages of value as required by §305". see, Second Amended Complaint at ¶'s EIGHTH, ELEVENTH & FOURTEENTH. Clearly, if the Assessor determined, as admitted by Plaintiffs, that the value of commercial properties had remained stable, then it is axiomatic that his determination not to reassess said properties had a rational basis. See, Mundinger, supra . See also, Kaminsky v. Town of Ossining, 12 Misc 3d 1169, 820 NYS2d 843 (Sup. Ct. Westchester Co. 2006); McCready v. Town of Ossining, 11 Misc 3d 1086, 819 NYS2d 849 (Sup. Ct. Westchester Co. 2006).

The motion to dismiss the Complaint is therefore, granted and the Second Amended Complaint is dismissed. Plaintiffs' motion for an expedited decision and preliminary injunction is denied in light of the determination herein.

This constitutes the DECISION and ORDER of the Court.

January 23, 2007 Riverhead, New York