A judge ordered the pied-à-terre database taken down. The city undid it the same evening, and nothing about September 18 changed.
The ruling in O'Brien v. City of New York, and the two findings in it that have not been reported. Follows our August 9 account of the filing.
Our August 9 post on O'Brien v. City of New York ended on the observation that no court had issued a stay. On Monday, August 10, one did. Justice Wayne M. Ozzi signed a temporary restraining order directing the Department of Finance to take the supplemental roll off its website and to stop acting on the roughly 17,000 notices. That evening the city served an appeal, and because the appellant is a political subdivision of the state, the order was stayed automatically, without an undertaking, under CPLR §5519(a)(1). The database went back up. The order still exists and is unenforceable. Argument is August 31. The September 18 exemption deadline never moved, and no owner should treat this ruling as a reason to wait.
What the court actually held.
Justice Ozzi found that the notices did not constitute proper notice under the tax law, and located the defect where the petition had put it: the city skipped the individualized statutorily-required initial determination and shifted the burden to owners before making any finding. He treated the notices themselves as irreparable harm, because they told recipients nothing about why they had been selected while warning that a failure to apply would result in the surcharge being imposed. On the roll he was blunter, writing that no law permitted or required the city to publish such a list of the names, addresses, and property values of more than 900,000 New York City homeowners.
That is a TRO, not a merits ruling. It reflects one judge's preliminary view on a record assembled in three days. But it is the first judicial characterization of the rollout, and it adopts the administrative-law theory rather than any of the constitutional attacks on Article 30-C moving separately.
The stay is the part worth understanding.
CPLR §5519(a) provides that service of a notice of appeal, or of an affidavit of intention to move for permission to appeal, stays all proceedings to enforce the order appealed from. Subsection (a)(1) extends that to the state and to any political subdivision of it. A private litigant who wanted the same protection would have to post an undertaking or persuade a court. The City of New York gets it by filing paper.
So the practical sequence for an owner reading Monday's headlines was: a court ordered the list down in the afternoon, and the list was back by the evening, with no further judicial action in between. A city spokesperson said the administration disagreed with the ruling but was confident in the surcharge and in the city's ability to implement it fairly and effectively. Coverage describing the tax as blocked was accurate for a matter of hours and has not been true since.
The number in circulation is wrong, and the correct one is smaller than either side says.
A widely repeated summary this week described the ruling as blocking a tax on around a million residents who own second homes. The roll is not that, and the city never said it was. DOF filtered the July 24 file by building classification code alone, not by value and not by residency, which is why it runs to 959,710 rows: 684,619 Class 1 records and 275,091 Class 2 records, or close to the entire residential roll of the city with rental buildings removed.
Tom Flaschen, who writes the property-tax newsletter Bored of Estimates, worked the published files and found roughly 24,000 records above the statutory value thresholds: about 6,800 Class 1, about 12,000 condominium units, and about 5,500 co-op units. He also found that the 31,000 figure circulating in coverage double-counts, because it adds whole co-op buildings to the individual apartments inside them. Above the threshold is still not liable, because liability turns on maintaining a different primary residence. Our August 9 post used roughly 13,000 as the estimate of actual pieds-à-terre; the tiers below are the fuller picture.
| Figure | What it counts | What it does not mean |
|---|---|---|
| 959,710 | Rows on the July 24 roll, filtered by building classification code alone | Not second homes, and not a list anyone was asked to respond to |
| ~24,000 | Records above the statutory value thresholds | Not liability; most are primary residences |
| ~17,000 | Owners DOF mailed, because its records did not establish primary residence | Not a determination that any of them owes anything |
| ~13,000 | Working estimate of actual non-primary residences | An estimate, not a count the city has published |
Two findings that have not been reported, both specific to co-ops.
First: the roll published individual co-op apartments, and it published them because of the neighbours. A co-op is one tax lot, and individual apartments have never carried separate published market values. To produce a Phase One number DOF multiplies the building's market value by the shareholder's percentage allocation. Having built those imputed figures, it published them, and it published them for every apartment in any building where at least one unit might be in scope. Rosenberg & Estis, reading the roll addendum, noted that cooperative apartments may be identified by street address and apartment number even though they are not separate tax lots. Flaschen counted roughly 36,700 individual co-op apartment valuations in the file, none of which had ever been public. A shareholder can therefore appear on a public city file, by address and apartment number, with a dollar figure attached, because of the allocation percentage of someone several floors up. Justice Ozzi's line about the absence of any law authorising the list lands hardest on exactly that owner.
Second: DOF was asked to fix the co-op valuation mismatch, and declined. This is in the rulemaking, not the ruling, and it is the most useful document of the week. The department adopted its final rule on July 14, 2026, codified at DOF Rule §62-06. In the comment process Rosenberg & Estis asked that an apartment carrying a Phase One market value of at least $1 million be excluded where reliable comparable-sales evidence established that its sales-based value was below $5 million, which is the parity the two class thresholds are supposed to express in the first place. DOF declined. The final rule keeps the share-allocation method and admits no sales-comparable exception.
That refusal settles, on the record, the argument everyone has been having about the $1 million threshold. As we set out on July 31, the threshold is not five times harsher than the Class 1 threshold: 4.0 percent of $1 million is $40,000, and so is 0.8 percent of $5 million, and at the median valuation ratio the classes are near parity. The defect is dispersion, not the multiplier, and a sales-comparable safety valve is precisely the instrument that catches dispersion. It was requested in writing by a firm that does this work for a living, and it was refused. The statute's own Phase Two, which retires the imputed method in 2028 and moves every class to a $5 million threshold on comparable sales, concedes the point on a three-year delay.
What this changes for an owner or a board. Very little, deliberately.
- File by September 18, 2026. The stay means the rollout is live and the deadline is real. An owner who files a timely exemption is in no worse position if the court later voids the notices. An owner who waits on the litigation and misses the window is in a materially worse one.
- Being on the roll is not a bill and not a determination. It also is not nothing: the supplemental roll stays open to correction through December 2026.
- Boards: the August 30 DOF notice date is unchanged, and so is the preparation described in our June 29 guide. Ask now, in writing, how the building will get an affected shareholder their notice inside the 30-day contest window. There is no statutory answer, which is why it has to be asked.
- Value and residency can both go to the NYC Tax Commission, but not in parallel with a DOF challenge on the same ground.
Bottom line.
A judge held that the city inverted the order of operations the tax law requires, and the city reversed him with a filing fee's worth of paper the same evening. Both halves are the story. Underneath them sit two facts that outlast whatever happens on August 31: DOF published 36,700 co-op apartment valuations that had never been public, reaching apartments whose only connection to the surcharge is a neighbour's share allocation, and DOF was asked in the comment process to let comparable sales correct the co-op threshold and said no. The first is what the litigation is about. The second is what it is not about, and will still be true after the case ends.
Primary sources: O'Brien v. City of New York, No. 85217/2026 (Sup. Ct., Richmond Cty.), TRO signed Aug. 10, 2026; argument Aug. 31, 2026 · CPLR §5519(a)(1) (automatic stay on appeal by a political subdivision) · NY Tax Law Article 30-C §§1350–1356 · NYC DOF Rule §62-06, Rule Relating to Surcharge on Certain Non-Primary Residences, adopted July 14, 2026 · NYC DOF, Supplemental Market Value Roll (July 24, 2026) · NYC Comptroller, The Pied-à-Terre Tax and Its Potential Revenues
Reporting and analysis: Gothamist · amNewYork · Fortune · Tom Flaschen, Bored of Estimates · Greenberg Traurig on Rule §62-06 · Rosenberg & Estis on the roll addendum
The series: The first court test (Aug 9) · No primary-residence registry (Aug 6) · Taxed as a rental building (Jul 31) · One shareholder can lien the building (Jul 15) · How boards collect it (Jun 29) · Your board became a tax collector (Jun 3)