WESTCHESTER PARK ASSOCIATES v. UNMACK

Order unanimously reversed on the law without costs and motion granted, in accordance with the following memorandum: The exclusive remedy for judicial review of the amount of an assessment is a tax certiorari proceeding under Real Property Tax Law article 7 (Niagara Mohawk Power Corp. v City School Dist., 59 N.Y.2d 262, 268). Since plaintiff does not question defendants' jurisdiction to tax, the court erred by concluding that plaintiff could collaterally attack the assessment in a plenary action by asserting equitable estoppel as a ground for relief (see, Samuels v Town of Clarkson, 91 A.D.2d 836, 837).

Since this action was commenced 18 months after the last act asserted as a basis for estoppel, the complaint must also be dismissed because it was time barred (RPTL 702; see, Stabile v Half Hollow Hills Cent. School Dist., 83 A.D.2d 945, 946).

Lastly, the complaint should have been dismissed for failure to state a cause of action. Equitable estoppel cannot be invoked against a local government where the alleged conduct of its employee was unauthorized or unlawful (La Porto v Village of Philmont, 39 N.Y.2d 7, 12; Matter of Wood v Cordello, 91 A.D.2d 1178). An Assessor has no authority unilaterally to correct an assessment after filing the tentative assessment roll (Matter of Niagara Mohawk Power Corp. v Town of Onondaga, 63 N.Y.2d 786, revg on dissent of Boomer, J., 96 A.D.2d 1138). He is authorized only to transmit a verified statement that the roll requires correction due to a clerical error or an unlawful entry (RPTL 552 [a]). Neither claim was made here. Estoppel cannot operate to create a right which never existed (Matter of Wood v Cordello, 91 A.D.2d 1178, 1179, supra).

The fact that the Assessor may have represented to plaintiff that his 1981 assessment would be $550,000 and that, upon filing of a tentative assessment roll containing a greater amount, represented that he would correct the assessment and that plaintiff need not file a grievance does not invoke an equitable estoppel. Such representations, if made, were unauthorized and unlawful.