Archive 2005 January Rye Brook, White Plains & Beyond

Town of Rye v Abel (2005 NY Slip Op 50302(U))
Port Chester, New York 10573 Lovett & Gould Attorneys for Defendant ... On May 9, 2003, the New York Assessor denied Defendant Abel's "Application for ...www.courts.state.ny.us/REPORTER/3dseries/2005/2005_50302.htm - 8k - Cached

Decided on January 5, 2005

Supreme Court, Westchester County

Town of Rye, Plaintiff,
against
Bernard Abel, Defendant.

10223-04

Mann & Mann, L.L.P. Attorneys for Plaintiff 316 Westchester Avenue Port Chester, New York 10573

Lovett & Gould Attorneys for Defendant 222 Bloomingdale Road White Plains, New York 10605

Louis A. Barone, J.

[*2]Plaintiff alleges Defendant, Bernard Abel, owes taxes to the Town of Rye. Defendant alleges his legal and permanent residence is in the Town of Rye. However, Plaintiff has copies of sworn affidavits wherein Defendant alleges his permanent residence and domicile is in the State of Florida. Defendant can have only one permanent legal residence. In the tax year 1999, Defendant completed a "Florida Department of Revenue Original Application for AD Valorem Tax Exemption". His application alleges that he was a permanent Florida resident since 1981. He has a Florida driver's license and voted in Florida in 1997. The application indicates Defendant filed an exemption in 1998 as well for his permanent residence at 8970 S. Hollybrook Blvd. 305, Pembroke Pines, Florida 33025. Additionally, Defendant was receiving STAR School Tax Relief for his home at 6 Edgewood Drive, Village of Rye since 1998. Both the Florida Homestead Exemption and the New York State STAR require that you be a permanent resident in one place to get the relief. "A Florida resident receiving a homestead exemption in that state cannot have the STAR exemption". On May 9, 2003, the New York Assessor denied Defendant Abel's "Application for Enhanced/Basic STAR Exemption" on the basis of residency. Also Florida removed Defendant from the Homestead Exemption and was seeking back taxes for the years 2000, 2001 and 2002. Defendant submitted the Florida license to the Florida authorities to prove residence and a New York license to New York authorities to prove residency in New York. His Federal taxes show his Florida address. Defendant has knowingly falsely filed for deduction in both States thus defrauding both governments. Plaintiff seeks judgment against Defendant in the sum of $11,834.70 plus interest, costs, disbursements, penalties provide by law, probation from receiving STAR exemptions, counsel fees and punitive damages. In opposition, Defendant, Bernard Abel, states under oath that at all times he has been "a permanent resident of the Town of Rye". He denies ever being a permanent resident of the State of Florida. [*3]Defendant's counsel states Mr. Abel "presents incontrovertible facts" but does not state what those facts are. Defendant refers to a "cross-motion", however, no cross-motion and accompanying affidavits, if any, have been filed with the Court. The Court has Defendant's memorandum of law and opposing affidavit but no cross-motion. Defendant alleges Plaintiff's motion is based "upon irrelevant sworn legal conclusions,...inadmissible hearsay allegations...and a series of documents which are not certified or authenticated and with respect to which no competent foundation evidence is presented". Thus Defendant claims Plaintiff's motion for summary judgment should be denied. In reply, Plaintiff's counsel, as the Town Attorney, is an officer of the Town and as such has personal knowledge of what occurred. Furthermore, Defendant's signature appears on all of the documents submitted in support of Plaintiff's case. Defendant has not contested his signature nor the fact that he certified as true the information which he placed on each document. Nonetheless, Plaintiff has annexed to its reply, certified copies of Defendant's 1999 Florida Department of Revenue Original Application for Ad Valorem Tax Exemption. In his opposing affidavit, Defendant Abel refers to a conversation he had with the Town of Rye Tax Assessor, Mitchell Markowitz, who advised him that according to the Town records, Mr. Abel had "continuously been a permanent resident of the Town of Rye, New York". Mr. Markowitz submits an affidavit stating "I have absolutely no recollection of any conversation with Mr. Abel stating either that the filing or prosecution of this was improper or was motivated by politics". Mr. Markowitz states he received official copies of all Homestead Applications prepared and signed by Mr. Abel certifying that he was a permanent Florida resident. Mr. Markowitz also has original applications signed and completed by Mr. Abel attesting to the fact that for the same period, 1999, 2000, 2001, 2002 and 2003 he was a permanent resident of the State of New York. Plaintiff's motion for summary judgment against Defendant, Bernard Abel, is granted. Plaintiff will have judgment against Bernard Abel in the sum of $11,834.70 plus interest from 1999 together with the costs and disbursements of this action. Plaintiff may enter judgment and execute accordingly. Plaintiff is granted punitive damages against Defendant for fraudulent acts and counsel [*4]fees. Plaintiff will file a Notice of Assessment of Damages with reference to the punitive damages and counsel fees with the Central Calendar Part. Plaintiff will appear before the Central Calendar Part of this Court on February 7, 2005 at 9:30 A.M. to schedule said hearing. This constitutes the order of this Court.

Dated: January , 2005

E N T E R,
White Plains, NY
HON. LOUIS A. BARONE, J.S.C.