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Citing Fourth Amendment protections against unreasonable searches, an appeals court ruled that a woman challenging a property tax assessment may bar the town’s appraiser from entering her house for a valuation inspection.

The need of the Town of Cornwall to assess Marlene Jacobowitz’s home accurately in fairness to all other residential property taxpayers does not outweigh her constitutional right to prohibit an agent of her town from entering the dwelling without a warrant, the unanimous Appellate Division, Second Department, panel decided.

“The town respondents failed to meet their burden of establishing their present entitlement to enter into and inspect the petitioner’s home for purposes of conducting an appraisal inspection,” Justice Thomas Dickerson (See Profile) wrote for the unanimous court in Matter of Jacobowitz v. Board of Assessors for Town of Cornwall, 2012-06378.

The panel reversed Orange County Supreme Court Justice Catherine Bartlett, finding she improperly placed the burden on Jacobowitz in April 2012 to demonstrate her right to ban the town appraiser from entering her home in the village of Cornwall-on-Hudson. Bartlett had ordered Jacobowitz to let the appraiser in, but the panel said the burden was on the town to demonstrate its entitlement to enter.

Justices Mark Dillon (See Profile), Leonard Austin (See Profile) and Jeffrey Cohen (See Profile) joined in the ruling.

The home is in the name of the wife of Gerald Jacobowitz, a prominent Orange County attorney. Marlene Jacobowitz was represented on appeal by her husband and Kara Cavallo, as associate at the Walden firm of Jacobowitz & Gubits.

The judges conceded that a government inspection of a dwelling for appraisal purposes is a “less hostile intrusion” than that which occurs when a police officer seeks to search a home for signs of criminality.

But they said administrative inspections of homes still represent “significant intrusions” on dwellers’ Fourth Amendment interests.

The court noted that the U.S. Supreme Court in Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 (1967), held that administrative searches aimed at ensuring compliance with fire, health and housing codes are “subject to the protections provided by the warrant procedure developed under the Fourth Amendment.”

To establish their entitlement to enter the home for appraisal, the town must demonstrate that the inspection was “reasonable” and that it had probable cause for a warrant to permit government agencies inside, according to the panel.

The judges said the town could meet that test, but failed to do so because Bartlett had erroneously shifted the burden onto the homeowner.

The court said it was unclear the town could accurately assess the home without going inside, such as by determining the value of similar homes where similar improvements had been made or using an estimate of a third party who had been inside the dwelling.

“Since there are numerous alternative methods of accurately appraising the value of residential real property, under the circumstances presented here, the town respondents’ interest in accurately appraising the petitioner’s home by means of an interior inspection does not outweigh the petitioner’s privacy and property interests in precluding a warrantless entry and search of her home,” Dickerson wrote.

The court also rejected the town’s argument that Jacobowitz had waived her Fourth Amendment right to bar the appraiser by challenging the town’s assessment in the first place.

The case stemmed from the Town of Cornwall’s assessments of property values for the 2006-2007 tax year.

Without an appraisal inspection being performed, the Jacobowitz home was valued at $735,700, an increase of about $96,000 from the previous tax year. At a forum in May 2006 for homeowners wishing to dispute their assessments, Marlene Jacobowitz argued that the proper assessment was $391,000 and that the property was being overassessed by $344,700.

When the town did not adjust the assessment, Jacobowitz commenced a tax certiorari proceeding.

In a challenge by another Cornwall property owner decided by the Second Department in February 2011, in Matter of Leone Props. v. Board of Assessors for Town of Cornwall, 81 AD3d 649, the court ruled that the town had reassessed property on a selective basis in 2006-2007.

The town offered to settle challenged assessments with homeowners by returning their assessments to pre-2006 levels. According to the ruling, all property owners agreed except for Jacobowitz, who renewed her request for a reassessment.

When Jacobowitz barred the town appraiser from her home during a subsequent inspection attempt, the town went to court to force her to do so.

John Thomas Jr., a Jacobowitz & Gubits partner, said the Jacobowitzes questioned the fairness of failing to inspect the home in 2006 before arriving at the $735,700 valuation, but demanding one after the assessment was challenged.

“The decision places checks on retaliatory inspections and requires the town to demonstrate that it cannot accurately appraise the parcel by other available less-intrusive means,” Thomas said.

Ira Levy of Rye Brook represented the town.

Cuomo’s Home

An appraiser’s access to the Westchester County home of Gov. Andrew Cuomo has become something of an issue in the 2014 governor’s race.

The Republican nominee, Westchester County Executive Rob Astorino, has questioned whether Cuomo is paying his fair share of property taxes on the New Castle home he shares with Food Network star Sandra Lee.

In May, New Castle’s appraiser was denied entry into the home, which is in Lee’s name, to determine if a number of renovations described in Vogue and other publications has substantially altered the value of the property.

Cuomo said he was unaware that the appraiser had been prohibited from entering the house and that he thought an appraisal could be done from outside the house.