NY2: Seeking tax reassessment not a waiver of Fourth Amendment rights as to the tax assessor

By seeking a reassessment, taxpayers were not waiving Fourth Amendment rights against an entry by the tax assessor. Matter of Yee v Town of Orangetown, 2010 NY Slip Op 5017, 76 A.D.3d 104, 904 N.Y.S.2d 88 (2d Dept. 2010):

The JHO [“Judicial Hearing Officer”] distinguished such a situation, holding that a homeowner makes a limited, revocable waiver of Fourth Amendment rights and consents to an assessor’s inspection by commencing a SCAR [“Small Claim Assessment Review”] proceeding. This was error. A waiver of Constitutional rights must be knowing and intelligent (see Fiore v Oakwood Plaza Shopping Ctr., 78 NY2d 572, 581, 585 N.E.2d 364, 578 N.Y.S.2d 115, cert denied 506 U.S. 823, 113 S. Ct. 75, 121 L. Ed. 2d 40; People v Leftwich, 134 AD2d 371, 520 N.Y.S.2d 849). Nothing about commencing a SCAR proceeding, with its informal nature and lack of disclosure, puts the homeowner on notice that the assessor must be allowed into the residence for an inspection or the proceeding will be dismissed.

In Schlesinger v Town of Ramapo (11 Misc 3d 697, 807 N.Y.S.2d 865), a tax certiorari proceeding, the Supreme Court held that the town did not have a right to send an appraiser to perform an inspection of the premises without the homeowner’s permission and that the requested inspection was an unreasonable search. Citing the Fourth Amendment prohibition on unreasonable searches and the opinion of ORPS that an assessor may not enter a private residence without permission, the court held that the requested inspection was unreasonable. …

If homeowners do not waive their right to refuse access by commencing a tax certiorari proceeding, where rules of disclosure apply (see RPTL 700[2]), then it follows that they do not waive such right by commencing a more informal SCAR proceeding, an argument persuasively raised by the petitioners herein.