Berliner v. Nassau County

The following papers read on this motion: Notice of Motion                XX Affirmation in Support       XX Memorandum of Law in Support      XX Memorandum of Law in Opposition                X Reply Memorandum of Law              X   Upon the foregoing papers and the oral arguments held before the undersigned, the motion by defendants Nassau County, Nassau County Department of Assessment, Assessment Review Commission, Laura Curran, and David F. Moog (together as “the County” or “Defendants”), pursuant to CPLR §3211(a)(3),(5),(7), and CPLR Article 78, dismissing plaintiffs Verified Petition and Class Action Complaint; and the motion by plaintiffs Eric Berliner, Robert Fine, Michael Aryeh and Jill Pesce (hereafter collectively as “defendants”) are determined as follows. The within action was commenced as a hybrid Article 78 proceeding and Class Action seeking declaratory relief and a permanent injunction. Plaintiffs seek judgment as follows: 1. A permanent injunction and stay of all efforts to finalize and publish the temporary assessment roll for tax year 2020-21 until further review, analysis, and revisions to the tax assessment and its methodology can be performed; 2.  A declaratory judgment that (i) defendant’s real property valuation and assessment laws, regulations, policies and practices, (ii) the resulting real property taxation system, (iii) the real property taxes that have been and will be imposed and collected from the Class, and (iv) other actions alleged herein violate and continue to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution, the New York Constitution, RPTL §305, and Nassau County Charter §603; 3.  That this Court enter a permanently effective, court-supervised order that requires defendants to, in perpetuity, (i) conduct annual, scientific assessments; and (iii) comply with the requirements of the Coleman Consent Order; 4.  A permanent injunction that restrains Defendants from collecting or levying taxes on real property on the basis of the flawed 2018 reassessments; 5.  A declaratory judgment granting plaintiffs access to all software, algorithms, formulae, computer modeling and data employed in the Reassessment; 6. An award of attorney’s fees, and costs The plaintiffs allege the following causes of action: (1) that the Reassessment (hereafter as “Reassessment”) violates the Federal Due Process Clause in that the failure to disclose the methodology behind the reassessments has deprived taxpayers from having a meaningful opportunity to challenge the applicability and constitutionality of the Reassessments; (2) that the Reassessment violates the Federal Equal Protection and Federal Due Process Clauses of the U.S. Constitution by creating and implementing a property tax assessment system that caused gross disparities in the tax burden imposed upon similarly situated taxpayers; (3) that the Reassessment violates Article 6, Section 1 of the New York State Constitution as to due process and equal protection in that the reassessment treats similar situated properties differently and utilized unreasonable neighborhood factors; (4) that the Reassessment violates Article 9, Section 2 of the New York State Constitution in that it is inconsistent with those provisions of the Constitution of New York State which require due process of law, equal protection, and require that taxing assessments be equal to market value; (5) that the reassessment violates Article 16, Section 2 of the New York State Constitution in that the reassessment does not adequately establish fair market values for Nassau County’s Class One residential properties; (6) that the reassessment violates §305(2) of the Real Property Tax Law (hereafter as “RPTL”) which requires that real property within each of the four classes “to be assessed at the same percentage of full value”; (7) that defendants violated Section 603 of the Nassau County Charter by implementing inequitable and unscientific policies and procedures in conducting the Reassessments; by failing to publish and make publicly available those rules and regulations — including the factors and methodology — used in conducting the Reassessments; and by refusing to release those rules and regulations — including the factors and methodology — used in conducting the Reassessments to taxpayers upon application; (8) a declaration that the 2018-19 tax assessment methodology is arbitrary, capricious and unenforceable; (9) a declaration granting access to reassessment methodology pursuant to Freedom of Information Law; and (10) a stay, pursuant to CPLR Article 78, of Nassau County Department of Assessments’ implementation, finalization and publishing of the Reassessments as a final roll pending the resolution of this action. The County defendants move (Seq. No. 001) to dismiss plaintiffs’ complaint pursuant to CPLR §§3211 (a)(3), (5) and (7) and CPLR 7804(f). Defendants contend, inter alia, that plaintiffs do not have standing to challenge the reassessment of residential real property in the County; that the causes of action in the complaint are not ripe for judicial review; and that the causes of action in the complaint fail to state viable causes of action for relief at this juncture. The plaintiff’s move (Seq. No. 002) pursuant to CPLR Article 9 for an Order certifying this action as a class action on behalf of property owners in Nassau County whose property taxes during the 2018-19 tax year have either been over assessed or under assessed as a result of Nassau County’s implementation of its tentative countywide assessment roll unveiled on January 2, 2019 for the 2020-2021 tax year; for an Order appointing plaintiffs as Lead Plaintiffs and Class Representatives for the class and sub-classes; and appointing Herrick, Feinstein, LLP as counsel for the class. In considering defendants’ motion to dismiss for failure to state a cause of action pursuant to CPLR Rule 3211(a)(7), the plaintiffs’ claims must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference (Dinger v. Cefola, 133 A.D. 3d 816, 20 N.Y.S. 3d 416 [2nd Dept. 2015]; Webb-Weber v. Community Action for Human Services, Inc., 23 NY3d 448, 15 N.E.3d 1172, 992 N.Y.S. 2d 163 [2014]; Leon v. Martinez, 84 NY2d 83, 638 N.E. 2d 511, 614 N.Y.S. 2d 972 [1994]; Fuller v. Collins, 114 A.D.3d 827, 982 N.Y.S. 2d 484 [2014]; Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d 793, 921 N.Y.S.2d 108 [2011]). The “sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law….” (Guggenheimer v. Ginzberg, 43 N.Y.2d 268, 275, 401 N.Y.S. 2d 182 [1977]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.” (EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y. 3d 11, 19, 832 N.E.2d 26, 799 N.Y.S.2d 170 [2005]). “When a party moves to dismiss a complaint pursuant to CPLR 3211 (a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action…” and “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (Sokol v. Leder, 74 A.D. 3d 1180, 1181, 904 N.Y.S.2d 153 [2d Dept. 2010]). In accordance with the above standards, the Court will consider the claims in the complaint as true and view the contentions therein in the light most favorable to the plaintiffs for purposed of this motion. The Court finds the matters herein to be of great significance, not only to the parties herein, but to all Class I property owners. As such, the Court has reviewed in detail all of the submissions of the parties herein and heard multiple oral arguments. The following facts are taken from the plaintiffs’ complaint and are not deemed findings of fact by this Court but, as stated earlier, will be deemed to be true for purposes of this motion. Plaintiffs are New York state citizens and real property owners in the County of Nassau. All the named plaintiffs, as wells as the members of the proposed Class, are home owners in Nassau County whose property taxes during the 2018-19 tax year have either been over assessed or under assessed as a result of Nassau County’s implementation of the Reassessment. Defendant Nassau County Department of Assessment is responsible for developing for fair and equitable assessments for all real property owners in Nassau County on an annual basis. Defendant Assessment Review Commission is an independent agency responsible for annually reviewing all applications for the correction of tax assessments filed in Nassau County. The Commission reviews the valuation set by the Department of Assessment and reduces the assessment if the valuation is found to be excessive. Defendant Laura Curran, Nassau County Executive has advanced the implementation of the Reassessment and defendant County Assessor David F. Moog oversaw the implementation of the Assessment. In 1997, the Nassau County real property tax assessment system was challenged by minority homeowners, asserting that the method of assessment had a racially disparate impact. The matter was settled and a consent decree was entered into which stipulated that the County would create a new tax assessment roll which was non-discriminatory, scientific, equitable, based on current, fair market value and which assessed all Class One residential property at a uniform fractional assessment rate based on fair market value. The fractional assessment rate could not violate the limitations imposed by the application of RPTL 1805(1). RPTL 1805(1) states that “the assessor of any special assessing unit shall not increase the assessment of any individual parcel classified in Class One in any one year as measured from the assessment on the previous year’s assessment roll, by more than six percent and shall not increase such assessment by more than twenty percent in any five-year period.” Approximately three years later, after the County took on a massive effort to produce a new assessment roll, in December of 2004 the third annual assessment was approved. However, while the new assessment roll alleviated some of the concerns of the old system, new problems arose leading to over two hundred percent as many tax appeals filed by County residents resulting in a high number of successful appeals which, in combination with the “County Guaranty” and the State’s 9 percent interest rate, led to massive refunds by the County. In 2010, the County froze the assessment roll on residential properties in an effort to ease the strain on its budget from tax refunds, diminish borrowing and save revenue. However, under the frozen tax rolls, the County continued to allow individual tax grievances to be filed seeking more aggressively to resolve and settle those grievances before they resulted in tax appeals. It appears that those who successfully grieved their assessments disproportionately shifted the tax burden to those who did not. To address this issue, in early 2018, newly elected County Executive, Laura Curran (hereinafter as “Curran”), ordered the assessment rolls unfrozen and a reassessment of approximately 400,000 residential properties to establish new market values to be applied to the 2020-2021 tax year. The administration’s objective was to complete the reassessment by 2019. In March of 2018, the County legislature approved contracts with an outside company to calculate new residential market values. In September, Curran issued another executive order lowering the level of assessment from .25 percent to .1 percent to ensure compliance with RPTL §1805. The reassessment was conducted using algorithms, or formulas, programmed into computer software that generates calculations based on the data entered therein. The algorithm, however, was employed as a predictive model with valuations thereafter verified by analyzing comparable sales, or reference to recent sales of comparable nearby homes. After comparable sales were accounted for, a “neighborhood factor” was employed. The county was divided into 324 geographic areas, or neighborhoods, that would increase or decrease assessed values based on a property’s neighborhood designation. Particularly, each property’s market value would be multiplied by the assigned neighborhood factor. Neighborhoods with a factor above 1 saw increased valuations while those with factors below 1 saw decreased valuations, with factors ranging from.6 to 1.9. The reassessment was completed in 6 months. In November of 2018, Assessment Disclosure Notices and Tax Impact Notices were sent to residents notifying them of their new market values and a “comparison of your share of Nassau County, town, special district and school taxes…for the most recently-completed tax year of 2017-2018 to a hypothetical application of those same taxes using your preliminary assessment for the 2020-2021 Tentative Assessment Roll.” On January 2, 2019, the County unveiled the tentative assessment roll to be finalized and published on April 1, 2020. The rollout and notification process of the Reassessment encountered numerous issues as it appears that at approximately 85,000 of the 400,000 residential properties being reassessed in Nassau County needed to be amended by the time the tentative roll was released. It also appears from plaintiff’s submissions that the assessment of the aforementioned 85,000 thousand properties was lowered but that no new tax impact statements were amended and sent to all residents even though all of the newly assessed properties in the County would be affected by the changes. Plaintiffs allege that the countywide reassessment was rushed, and conducted in an arbitrary, unscientific, and unfair manner lacking uniformity; that the reassessment failed to capture fair residential market values; that the use of neighborhood factoring produced striking discrepancies among similar properties; and was performed under a veil of secrecy with the utilization of undisclosed software and algorithms. In support of its Verified Petition and Class Action Complaint, the plaintiffs submit, inter alia, various local news articles following the reassessment process; the transcript of the March 18, 2019 Nassau County Legislature’s Legislative Session pertaining to the Reassessment; and numerous examples and results of an independent analysis revealing the striking differences in assessed values of similar homes separated by the neighborhood adjustment factors. Plaintiffs allege that the County has played “musical chairs” with its residential home tax base; and will once again place the County in a precarious financial situation similar to that which led to the “freeze”. Plaintiffs allege that the over-assessed homes will challenge their assessments, and if not settled, will be appealed and ultimately result in judgments against the County leading to refunds, with 9 percent interest. The under-assessed homes will not challenge, but as a result of the successful challenges by others, will see their taxes increase as tax rates will go up to fund the tax levy. Plaintiffs allege that a standstill is necessary to give additional time and the disclosure necessary to properly and fairly assess all residential properties in a manner which will not lead to financial disaster for the County. Plaintiffs further allege that the grievance procedure available to individual taxpayers is an inadequate remedy to the arbitrary and capricious property assessment regimen imposed by Defendants. The plaintiff states that the only remedy available through that process is an assessment reduction, but (1) taxpayers are unable to make a meaningful application for an assessment reduction given the secrecy surrounding the property assessment procedures and factors; (2) obtaining that remedy of an assessment reduction is not certain, (3) the reductions are not scientific; (4) the reductions do not account for the underassessments of other neighboring properties; (5) huge financial stress will be placed on all homeowners due to numerous underassessments; and (6) complete relief is not possible because it is limited to the individual filer. (See, Verified Petition and Class Action Complaint at 22-23) Standing Defendants first contend that plaintiffs do not have standing. Standing is the principle “that a court can only act when the rights of the party requesting relief are affected.” Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772 [1991]). As a threshold determination, the burden of establishing standing is on the party seeking relief. (Id. at 769). Generally, a litigant must have “something truly at stake in a genuine controversy” to invoke a court’s power. (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 812 [2003]). Plaintiffs contend that a showing of injury-in-fact is not required for citizen taxpayers. (Id. at 813). This is reflected in State Finance Law §123-b, which allows citizen taxpayers to bring an action against a state officer or employee to prevent “wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property.” (See State Finance Law §123-b(1)). However, that no defendant in this matter is a state employee or officer makes §123-b inapplicable. The common law also recognizes taxpayer standing “to challenge important government actions” when “the failure to do so would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action.” (Colella v. Bd. of Assessors, 95 N.Y.2d 401, 410 [2000]; Boryszewski v. Brydges, 37 N.Y.2d 361, 364 [1975]). This principle has been applied where “the action can serve as a means for citizens to ensure the continued vitality of the constraints of power that lie at the heart of our constitutional scheme.” (Saratoga, supra, at 814). Plaintiffs do not challenge any legislative action, but rather the Reassessment advanced by the County Executive and conducted by the Department of Assessment. However, standing has been afforded to taxpayers challenging actions by assessors where allegations of “broad conspiracy involving arbitrary and bad-faith abuses” are present. (Dudley v. Kerwick, 52 N.Y.2d 542, 552 [1981]). In Dudley, taxpayers were permitted to challenge, by way of Article 78, wholesale religious exemptions granted to 88 percent of town property owners as officers in a religious denomination. (Id. at 447-48). Since proper recourse outside the judicial process was unlikely, a denial of standing would preclude review of allegations of “a broad perversion of the entire process of granting exemptions.” (Id. at 550-51). Such a conclusion, the court asserted, was “inconsistent with the more recent trend of liberalizing the ability of taxpayers to challenge government action.” (Id.). In Colella v. Bd. of Assessors, standing was denied to citizen taxpayers challenging a tax exemption grant to a single piece of property by the assessment board. (95 N.Y.2d 401, 407 [2000]). The court noted that: “We are not called upon here to determine the scope of derelictions by assessors, which must be in some manner systemic in nature, that would afford taxpayer standing by analogy to the Matter of Dudley v. Kerwick precedent, Here, petitioners have not alleged anything more than a legally erroneous determination to grant a religious use tax exemption regarding a single parcel of real estate, which concededly would only have an insignificant impact upon the tax base of Nassau County. Dudley was never intended to confer general taxpayer standing under these circumstances. Indeed, in affording the limited recognition of the petitioners’ right to sue in Dudley, the Court justified conferring standing for the very reason that “petitioners here have alleged far more than erroneous determinations regarding some of the property in the town.’” (Id.; quoting Dudley, supra, at 551). Applying the aforesaid standard, this Court finds that plaintiffs have standing. Plaintiffs allege far more than erroneous individual property assessments. Plaintiffs contend that the systemic methodology employed in conducting the countywide reassessment contravened constitutional principles. Accordingly, this is not a case that would “permit challenges to the determinations of local government officials having no appreciable public significance beyond the immediately affected parties, by persons having only the remotest legitimate interest in the matter.” (Dudley. at 410-411). The present issue is undoubtedly “fundamental and of immense public significance.” (Saratoga, supra). Although plaintiffs have available recourse through Article 7, such proceedings will only address individual valuations thereby precluding any broad systemic challenge. It is also dubious to rely on county officials to challenge the assessment’s legality. (Boryszewski, supra). Thus, a denial of standing not only effectively insulates from review the important constitutional issues presented, but would erect an impenetrable barrier to judicial scrutiny of allegedly unlawful government action. (Saratoga, supra). Such a result is inconsistent with a doctrine that should be “expanded rather than contracted.” (Burke v. Sugarman, 35 N.Y. 2d 39, 45 [1974]). Accordingly, plaintiffs have standing. Ripeness Defendants next contend that plaintiffs’ claims are not ripe for review. Ripeness is a justiciability doctrine designed to prevent premature adjudication or review of administrative action. (De St. Aubin v. Flacke, 68 N.Y.2d 66, 75 [1986]). Ripeness is conceptually distinct from the “requirement that administrative remedies must be exhausted before an action may be judicially reviewed.” Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 521 [1986]; (Dozier v. New York City, 130 A.D.2d 128, 132-133 [2nd Dept. 1987]). The exhaustion requirement is one of judicial procedure while finality concerns “whether an official authorized to make the determination has arrived at a decision that inflicts injury.” (Town of Orangetown v. Magee, 88 N.Y.2d 41, 51 [1996]). Only administrative determinations that are “final and binding upon the petitioner” can be challenged by way of article 78. (Matter of Ranco Sand & Stone Corp. v. Vecchio, 27.3d 92, 98 [2016]). Administrative actions are not final “unless and until they impose an obligation, deny a right or fix some legal relationship as a consummation of the legal process.” (Id.) Finality requires considering “the completeness of the administrative action” and “a pragmatic evaluation [must be made] of whether the ‘the decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.’” (Essex County v. Zagata, 91 N.Y.2d 447, 453 [1998]); quoting Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 519 [1986]). Additionally, “there must be a finding that the apparent harm inflicted by the action may not be ‘prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.’” (Matter of Ranco Sand, supra, at 99.) “If further agency proceedings might render the disputed issue moot or academic, then the agency position cannot be considered ‘definitive’ or the injury ‘actual’ or ‘concrete.’” (Essex County, supra, at 454). Applying this standard, this court finds that plaintiffs’ claims are ripe for review. Contrary to defendants’ contentions, the tentative assessment roll unveiled by the County is not the administrative action presently challenged. Rather, the challenged action is the methodology utilized by the County to conduct the countywide reassessment that the tentative assessment roll derives its values from. When the County unveiled the tentative assessment roll, a definitive position was reached that the implemented methodology would serve as the basis for any valuations thereafter finalized. Thus, when the tentative assessment roll was unveiled on January 2, 2019, implementation of the methodology became complete and the alleged injury actual and concrete. In addition, further administrative actions would not prevent or ameliorate the alleged harm. As previously stated, plaintiffs can challenge their individual assessments through an administrative grievance process. However, such proceedings would fail to address the systemic assessment methodology that is the crux of plaintiffs’ challenge. Accordingly, plaintiffs’ claims are ripe for review. Further, plaintiffs are not required to exhaust administrative remedies. To challenge the action of an administrative agency, one “must exhaust available administrative remedies before being permitted to litigate in the court of law.” Town of Oyster Bay v. Kirkland, 19 N.Y. 3d 1035, 1038 [2012]; quoting Watergate II Apts. V. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 [1978]. However, this does not apply when an “agency’s action is challenged as either unconstitutional or wholly beyond its grant of power.” (Id.). While the mere assertion of a constitutional violation will not relieve a litigant from pursuing administrative remedies, Town of Oyster Bay supra, a challenge “to the method employed in the assessment involving several properties rather than the overvaluation or undervaluation of specific properties,” allows commencement of a plenary action “not subject to the procedures of RPTL article 7.” (Joon Mgt. One Corp. v. Town of Ramapo, 142 A.D. 3d 587, 588 [2nd Dept. 2016]). Accordingly, the exhaustion rule does not apply. Statute of Limitations Defendant next contends that even if plaintiffs have stated viable claims under Article 78, they are barred by the statute of limitations. Article 78 proceedings are governed by a four-month statute of limitations, “running from the time when ‘the determination to be reviewed becomes final and binding.’” (See CPLR §217(1); Matter of Banos v. Rhea, 25 N.Y.3d 266, 286 [2015]; quoting Walton v. NY State Dept. of Corr. Servs., 8 N.Y. 3d 186, 194 [2007]). Since this Court has determined that the challenged administrative action became final and binding upon plaintiffs when the tentative assessment roll was released on January 2, 2019, plaintiffs’ claims are not time-barred. Failure to State a Cause of Action Plaintiffs’ first cause of action alleges violation of federal and procedural due process alleging that the failure to provide the methodology behind the reassessments has deprived the taxpayers from having a meaningful opportunity to challenge the applicability and constitutionality of the Reassessment. Plaintiff’s ninth cause of action alleges that defendants are in violation of plaintiffs’ rights to the methodology used by the County in the 2018-19 Reassessment in accordance with Freedom of Information Law (hereafter as “FOIL”). At oral arguments in the matter, the defendants have placed great emphasis on the “multiple regression analysis” method used in producing the Reassessment. It appears that not all aspects of the software, algorithms, formulae, computer modeling and data employed in using the multiple regression analysis have been provided in response to requests by the defendants. The Court finds that the information requested is necessary to plaintiff’s action and further, this Court may very well need to address the applicability of the Multiple Regression Analysis itself. Accordingly, that branch of defendants’ motion to dismiss the first and ninth causes of action is denied. Plaintiffs second and third causes of action allege a violation of substantive due process and equal protection under the federal and state constitution, respectively. The Due Process Clause of the Fourteenth Amendment and the similar provision in the State Constitution prohibits the government from depriving a person of “life, liberty, or property without due process of law.” (US Const, 14th Amend; NY Const, art I §6). While procedural due process challenges government procedures used to effectuate the deprivation of a vested right, substantive due process “challenges the action itself.” (Mark G. v. Sabol, 93 N.Y.2d 710, 723 [1999]). “A property owner is denied substantive due process when a governmental decision affecting his property has been made in an arbitrary and capricious manner.” (Matter of Vecce v. Town of Babylon, 32 A.D.3d 1038, 1040 [2nd Dept. 2006]). Yet, even if plaintiffs have sufficiently alleged application of an arbitrary assessment methodology, substantive due process “does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action.” (Bowen v. Nassau County, 135 A.D.3d 800, 801 [2nd Dept. 2016]). The conduct must be “outrageously arbitrary as to constitute a gross abuse of governmental authority” to violate substantive due process. (Id.). “Only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” (Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 628 [2004]). In the present dispute, plaintiffs have failed to allege the egregious and outrageously arbitrary conduct that federal constitutional law requires. (Bower Assocs., supra, at 629-30; Bowen, supra). Although the State Constitution affords broader protection that its federal counterpart, Myers v. Schneiderman, 30 N.Y.3d 1, 13 [2017], such a principle has largely been confined to criminal procedure, People v. LaValle, 3 N.Y.3d 88, 127 [2004], and fundamental liberties, Myers, supra, and thus does not alter this Court’s determination. Accordingly, that branch of defendants’ motion to dismiss plaintiffs’ substantive due process claims under the State and Federal Constitutions is granted. The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides that “no state shall…deny any person within its jurisdiction equal protection of the laws.” (US Const, 14th Amend). Section 11, article 1 of the New York State Constitution provides that, “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” (NY Const. Art 1, §11). New York’s “equal protection guarantees are coextensive with the rights protected under the Federal Equal Protection Clause.” (Myers, supra, at 13; Matter of Esler v. Walters, 56 N.Y.2d 306, 313-314 [1982]). Equal protection guarantees “that all persons similarly situated must be treated alike.” (Matter of State of NY v. Myron P., 20 N.Y.3d 206, 211 [2012]; quoting Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 631 [2004]). “It is well settled that a system of assessment which is challenged on the ground of inequality may nevertheless survive judicial scrutiny if the assessing authority demonstrates that the classification which results in unequal treatment bears a rational relation to the achievement of a legitimate government objective.” (Chasalow v. Bd. of Assessors, 176 A.D.2d 800, 803 [2nd Dept. 1991]). Rational basis imposes a heavy burden on those challenging administrative actions. (Krugman v. Bd. of Assessors, 141 A.D. 2d 175, 182 [2nd Dept. 1988]). Indeed, the County is not even required to articulate the purpose behind the classification. (Tiles Inv v. Gulotta, 288 A.D.2d 303, 305 [2nd Dept. 2001]). Provided there are “any conceivable state of facts that could provide a rational basis for the classification,” the classification will stand. (Id.). Generally, “all real property within a district shall be assessed at a uniform percentage of market value.” (See RPTL 305(2); Krugman, supra, at 183.) “The integrity of any system of taxation, and particularly real property taxation, rests upon the premise that similarly situated taxpayers pay the same share of the tax burden.” (Foss v. Rochester, 65 N.Y.2d 247, 254 [1985]). It is not constitutionally mandated to treat all taxpayers the same, “only that those similarly situated be treated uniformly.” (Id.). However, “complete uniformity” is not required, only “rough equality.” (Chasalow v. Bd. of Assessors, 202 A.D.2d 499, 501 [2nd Dept. 1994]). An equal protection violation is found where there are “‘gross disparities’ in the taxation of similarly situated taxpayers” or the “classification between taxpayers is palpably arbitrary or involves an invidious discrimination.” (Id.). Applying these principles, plaintiffs have sufficiently plead an equal protection claim. Plaintiffs contend that the County’s reassessment generated gross disparities in assessed valuations among generally comparable properties. That equally valuable properties within a community allegedly received strikingly different valuations by virtue of a discretionary neighborhood designation not only argues against rough equality and uniformity but makes any allegation of an arbitrary distinction palpable. Plaintiffs further allege that homeowners who previously grieved their assessments were targeted in a discriminatory manner through increased assessments while those who did not grieve saw reduced valuations. While targeting those who previously grieved could rationally be related to the equitable redistribution of the tax burden that the reassessment aimed to achieve, defendants offer no rational basis for the alleged disparate treatment from the utilized neighborhood factoring, nor can this Court conceive of one. This is bolstered by the fact that the County has already afforded comparable nearby sales consideration in the assessment process. Accordingly, that branch of defendants’ motion to dismiss plaintiffs’ equal protection claims under both State and Federal Constitutions is denied. Plaintiffs’ fourth cause of action alleges that the County’s reassessment violated Article 9, §2 of the New York Constitution, which provides that a “local government shall have the power to pass local laws ‘relating to’ the ‘levy, collection and administration of local taxes…consistent with laws enacted by the legislature.’” (See NY Const, art IX, §2 [c] [ii] [8]; Matter of Baldwin Union Free Sch. Dist. V. County of Nassau, 22 N.Y. 3d 606, 624 [2014]). “This follows from, the fact that ‘[all] taxing power in the State of New York is vested in the legislature.’ To the extent that a county may tax, such authority exists as a delegation from the State.” (City of White Plains v. Del Bello, 87 A.D.2d 483, 485-86 [2nd Dept. 1982]; quoting Sonmax, Inc. v. City of New York, 43 N.Y. 2d 253, 257 [1977]). Any such violation “constitutes an excess of jurisdiction” and is thus “illegal and void.” (Id.). Since this court has determined that plaintiffs’ equal protection claim remains viable, plaintiffs have sufficiently plead a cause of action under Article 9, §2 of the New York Constitution. Accordingly, that branch of defendants’ motion is denied. Plaintiffs’ fifth cause of action alleges a violation of Article 16, §2 of the New York Constitution, which provides that “the legislature shall provide for the supervision, review and equalization of assessment for purposes of taxation. Assessments shall in no case exceed full value.” (NY Const, art XVI, §2). The “ultimate purpose of valuation…is to arrive at a fair and realistic value of the property involved.” (Commerce Holding Corp. v. Bd. of Assessors, 88 N.Y. 2d 724, 729 [1996]). “‘Full value’ is typically equated with market value, or what a seller under no compulsion to sell and a buyer under no compulsion to buy’ would agree to as the subject property’s price.” (Id.; quoting Matter of Allied Corp. v. Town of Camillus, 80 N.Y.2d 351, 356 [1992]). Although plaintiffs allege that the reassessment failed to capture fair market values for residential properties, plaintiffs fail to allege that the reassessment produced valuations exceeding full market value. Thus, that branch of defendants’ motion is granted. Plaintiffs’ sixth and seventh cause of action allege, respectively, a violation of RPTL §305(2), which requires all properties within a district to be assessed at a uniform percentage of value, and §603 of the Nassau County Charter, which requires “an equitable and scientific system of assessing property.” (See RPTL 305(2)). Allegations that generally comparable properties received strikingly differently valuations is sufficient to allege a violation of RPTL §305(2). (See Krugman, supra 183-84). Further, the alleged disparities between the market value and the assessed value of properties in several locations contests the notion of a scientific and equitable assessment system. Accordingly, that branch of the motion to dismiss the plaintiffs’ causes of action under RPTL §305(2) and §603 of the Nassau County Charter is denied. Plaintiffs eighth cause of action alleges that the County’s assessment methodology is arbitrary and capricious. “In reviewing an administrative agency determination, [courts] must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious.” (Matter of Murphy v. NY State Div. of Hous. & Community Renewal, 21 N.Y.3d 649, 652 [2013]). “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts.” (Matter of Migliaccio v. NY State Div. of Hous. & Community Renewal, 161 A.D.3d 747, 750 [2nd Dept. 2018]). “If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency.” (Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431 [2009]). However, administrative determinations made in excess of authority or violate the Constitution or state law are deemed arbitrary and capricious. (Matter of Jennings v. Commr., N.Y.S. Dept. of Social Serv., 71 A.D. 3d 98, 108 [2nd Dept. 2010]; Matter of Pasieka v. NY City Tr. Auth., 31 A.D. 3d 769, 770 [2nd Dept. 2006]; NY City Dept. of Envtl. Protection v. NY City Civ. Serv. Commn., 78 N.Y.2d 318, 323 [1991]). Since plaintiffs’ have alleged that the reassessment was unlawful and constitutionally infirm, plaintiffs have sufficiently plead a claim of arbitrary and capricious administrative action. Accordingly, that branch of defendants’ motion to dismiss the eight cause of action is denied. Plaintiffs’ tenth cause of action seeks a permanent injunction and stay under Article 78 of the implementation, finalization, and publishing of the 2018-2019 reassessments pending resolution of this dispute. A permanent injunction requires a showing of a “violation of a right presently occurring, or threatened and imminent…that the plaintiff has no adequate remedy at law…that serious and irreparable injury will result if the injunction is not granted; and…that the equities are balanced in the plaintiff’s favor” (See 67A NY Jur 2d, Injunctions §153; Elow v. Svenningsen, 58 A.D.3d 674, 675 [2nd Dept. 2009]). “Injunctive relief is ‘to be invoked only to give protection for the future…[t]o prevent repeated violations, threatened or probable, of the [plaintiffs'] property rights.” Merkos L’Inyonei Chinuch, Inc. v. Sharf, 59 A.D.3d 403, 408 [2nd Dept. 2009]). Contrary to defendants’ contentions, plaintiffs are not requesting a stay of the collection of taxes by the County, but to stay finalization of the tentative assessment roll. An unconstitutional assessment system, as alleged, is sufficient to establish a violation that cannot be amended by money damages or individual grievances through article 7. Indeed, the prospect of taxation stemming from such a system not only would impose irreparable harm but balances the equities in plaintiffs’ favor. Accordingly, since a permanent injunction is properly plead, that branch of defendants’ motion is denied. Accordingly, defendants’ motion to dismiss plaintiffs’ second and third causes of action as they relate to the substantive due process claims only, and fifth cause of action is granted. Defendants’ motion to dismiss plaintiffs’ first cause of action, second and third causes of action concerning the equal protection claims, and plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action are denied. Turning now to plaintiff’s motion (Seq. No.2) which seeks class certification (a) certifying this action as a class action on behalf of property owners in Nassau County whose property taxes during the 2018-19 tax year have either been over assessed or under assessed as a result of Nassau County’s implementation of its tentative countywide assessment roll unveiled on January 2, 2019 for the 2020-2021 tax year; (b) appointing plaintiffs as Lead Plaintiffs and Class Representatives for the proposed class and sub-classes; and (c) appointing Herrick as counsel for the class, this Court finds as follows. In their complaint, plaintiffs seek certification for a class defined as: “All Class One, single family, residential homeowners in Nassau County whose property’s market value and potential property taxes were affected by the 2018-19 countywide reassessment which resulted from the tentative assessment roll released on January 2, 2019 for tax year 2020-21″ (See Verified Petition and Class Action Complaint 74) Plaintiffs also seek certification for the following sub-classes: “Sub Class A: All Class One, single family, residential homeowners in Nassau County whose property’s market value was increased and over-assessed together with a potential increase in taxes by the 20018-19 countywide reassessment resulting from the tentative assessment roll released on January 2, 2019 for tax year 2020-21.” (Id.) “Sub Class B: All Class One, single family residential homeowners in Nassau County whose property’s market value was increased and over-assessed together with a potential decrease in taxes by the 2018-19 countywide reassessment which resulted from the tentative assessment roll released on January 2, 2019 for tax year 2020-21.” (Id.) “Sub Class C: All Class One, single family, residential homeowners in Nassau County whose property’s market value was decreased and under-assessed by the 2018-19 countywide reassessment which resulted from the tentative assessment roll released on January 2, 2019 for tax year 2020-21.” (Id.) In support of their application, the plaintiffs submit, inter alia, the affirmation of Scott E. Mollen, Esq. in support of class certification and attesting to the qualifications of Herrick, Feinstein LLP to serve as counsel for the class; and the affidavits of individual plaintiffs, Eric Berliner, Robert Fine, Michael Aryeh and Jill Pesce, each one attesting, among other things, to their ability to pay counsel for the class, that they understand their roles and duties as Lead Plaintiffs for the Class and Sub Classes, that they will prosecute the action vigorously on behalf of the class and make themselves available as necessary to participate in the subject action. Pursuant to CPLR §901 the prerequisites to a class action are as follows: a. One or more members of a class may sue or be sued as representative parties on behalf of all if: 1. The class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable; 2. There are questions of law or fact common to the class which predominate over any questions affecting only individual members; 3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; 4. The representative parties will fairly and adequately protect the interests of the class; and 5. A class action is superior to other available methods for the fair and efficient adjudication of the controversy. “There is no ‘mechanical test’ to determine whether the first requirement — numerosity — has been met (Kelley v. Norfolk & Western Ry. Co., 584 F2d 34, 35), nor is there a set rule for the number of prospective class members which must exist before a class is certified (Cypress v. Newport News Gen. & Nonsectarian Hosp. Assn., 375 F2d 648). Each case depends upon the particular circumstances surrounding the proposed class (Chmieleski v. City Prods. Corp., 71 FRD 118) and the court should consider the reasonable inferences and commonsense assumptions from the facts before it (Gay v. Waiters’ & Dairy Lunchmen’s Union, 549 F2d 1330; Brady v. LAC, Inc., 72 FRD 22; Hawk Inds. v. Bausch & Lomb, 59 FRD 619; see, also, Westcott v. Califano, 460 F Supp 737, affd 443 U.S. 76)”. (Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 96, 434 N.Y.S.2d 698, 706 [App. Div. 2nd Dept. 1980]) It is abundantly clear from the papers submitted that the prospective class and sub-classes satisfy the numerosity requirement of CPLR §901. The subject Reassessment includes approximately 400,000 single family residential homes and it appears that already 240,000 of those residential homeowners have filed applications for correction of their assessments. The County does not dispute the filing of these applications. The fact that more than half of all class one residential homeowners are challenging their tentative assessment is indicative of the systemic nature of the subject matter. “…the decision as to whether there are common predominating questions of fact or law so as to support a class action should not be determined by any mechanical test, but rather, “whether the use of a class action would ‘achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated’” (LaMar v. H & B Novelty & Loan Co., 55 FRD 22, 25; Advisory Committee Notes, 39 FRD 73, 103; see, also, Hernandez v. Motor Vessel Skyward, 61 FRD 558, affd 507 F2d 1278; cf. Buford v. American Fin. Co., 333 F Supp 1243).” (id. at 97) Defendants contend that the issues in this matter require the individualized investigation, proof and determination of the individual claims of over and under assessment and that the common questions are deminimis compared to the determinations to be made with regard to each and every parcel. However, as stated earlier herein, plaintiffs are alleging that the countywide reassessment was rushed, and conducted in an arbitrary, unscientific, and unfair manner lacking uniformity; that the reassessment failed to capture fair residential market values; that the use of neighborhood factoring produced striking discrepancies among similar properties; and was performed under a veil of secrecy with the utilization of undisclosed software and algorithms. The ultimate relief does not surround the individual valuation of each and every class one residential property but whether the Reassessment was conducted in a fair manner, lawful and in accordance with constitutional requirements. Clearly, the issues of law and any issues of fact are common to the class and sub-classes and the class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to all class one residential homeowners. As to typicality of the claims, the plaintiffs herein have sufficiently demonstrated that their claims are typical of the claims of the class. (see Friar, at 99). Further, contrary to defendant’s contentions, the plaintiffs, via their affidavits, have established their willingness and intention to fairly and adequately protect the interests of the class. (Dagnoli v. Spring Valley Mobile Vill., 165 A.D.2d 859, 560 N.Y.S.2d 323 (2nd Dept. 1990) Finally, as to the whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy, this Court finds that both parties’ arguments have merit with respect to the “Government Operations Rule” and stare decisis. However, where a widespread systemic deficiency is being challenged, and mindful of the liberal construction that must be given to CPLR §901, any doubt should be resolved in favor of class action status. (See, Hurrell-Harring v. State of New York 81 A.D. 3d 69, at 75-76 [3d Dept. 2011]) “A decision granting class action status is not immutable and if later events indicate that the decision should be reversed, altered or amended, requisite relief is authorized.” (see, Friar at 100). As such, this Court, in its discretion and in the interests of justice, may at any time during this proceeding de-certify this action as a class action should it be found necessary. Accordingly, the motion by plaintiffs for class certification is granted and the class and sub-classes shall be identified as follows: Class: All Class One, single family, residential homeowners in Nassau County whose property’s market value and potential property taxes were affted byt eh 2018-19 countywide reassessment which resulted from the tentative assessment roll released on January 2, 2019 for tax year 2020-21. Sub Classes: Sub Class A: All Class One, single family, residential homeowners in Nassau County whose property’s market value was increased and over-assessed together with a potential increase in taxes by the 20018-19 countywide reassessment resulting from the tentative assessment roll released on January 2, 2019 for tax year 2020-21. Sub Class B: All Class One, single family residential homeowners in Nassau County whose property’s market value was increased and over-assessed together with a potential decrease in taxes by the 2018-19 countywide reassessment which resulted from the tentative assessment roll released on January 2, 2019 for tax year 2020-21. Sub Class C: All Class One, single family, residential homeowners in Nassau County whose property’s market value was decreased and under-assessed by the 2018-19 countywide reassessment which resulted from the tentative assessment roll released on January 2, 2019 for tax year 2020-21. As agreed at the end of oral arguments on January 27, 2020, the parties are to appear before the undersigned at 2:00 P.M. to discuss the scheduling of discovery in this matter. This constitutes the decision and Order of this Court. Any request for relief not expressly granted herein is denied. So ordered. Dated: 28 January 2020