Matter of Champlain Ctr. N. LLC v Town of Plattsburgh

[*1] Matter of Champlain Ctr. N. LLC v Town of Plattsburgh 2017 NY Slip Op 50693(U) Decided on May 24, 2017 Supreme Court, Clinton County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 24, 2017
Supreme Court, Clinton County

In the Matter of the Application Under Article 7 of the Real Property Tax Law of Champlain Centre North LLC, Petitioner,

against

Town of Plattsburgh, Respondent, Beekmantown Central School District, Intervenor-Respondent, To Review Real Property Tax Assessments Pursuant to Article 7 of the Real Property Tax Law (2015). (Proceeding No. 1)

In the Matter of the Application Under Article 7 of the Real Property Tax Law of

Champlain Centre North LLC, Petitioner,

against

Town of Plattsburgh, Respondent, Beekmantown Central School District, Intervenor-Respondent, To Review Real Property Tax Assessments Pursuant to Article 7 of the Real Property Tax Law (2016). (Proceeding No. 2) In the Matter of the Application of



Champlain Centre North LLC, Petitioner,

against

Town of Plattsburgh, the Assessor for The Town of Plattsburgh, County of Clinton and Beekmantown Central School District, Respondents. For a Judgment Pursuant to CPLR Article 78 and RPTL Article 7 Vacating and Correcting the Assessments of Petitioner's Real Property located in the Town of Plattsburgh, Clinton County, New York. (Proceeding No. 3)



2015-0969



Phillips Lytle LLP, Buffalo (Paul Morrison-Taylor of counsel), for petitioner.

The Vincelette Law Firm, Albany (Daniel G. Vincelette and Stephen M. Almy of counsel), for respondent Town of Plattsburgh.

Ferrara Fiorenza PC, East Syracuse (Katherine E. Gavett of counsel), for intervenor-respondent/ respondent Beekmantown Central School District.
Robert J. Muller, J.

Champlain Centre North LLC (hereinafter petitioner) owns and operates Champlain Centre, a retail shopping mall in the Town of Plattsburgh, Clinton County. As a result of a "Stipulation and Consent Order for Settlement" that resolved prior tax certiorari proceedings, the assessed value of the mall for tax years 2011/2012 through 2014/2015 was established at [*2]$36,000,000.00. The Assessor for the Town of Plattsburgh (hereinafter the Town) subsequently increased the assessed value of the mall for the 2015/2016 tax year to $49,400,000.00. As a result, Petitioner commenced proceeding No. 1 on July 14, 2015 to challenge the increased assessment, with both the Town and Beekmantown Central School District (hereinafter BCSD) appearing relative to the proceeding.

The Court conducted a telephone conference on February 8, 2016, at which time the parties were directed to file appraisal reports on or before May 6, 2016 and the trial was scheduled for October 6, 2016. Petitioner thereafter filed its appraisal report on May 6, 2016, but the Town and BCSD (hereinafter collectively referred to as respondents) failed to do so. The Court then conducted a second telephone conference on May 11, 2016, at which time respondents requested an extension in which to file their appraisal report. Counsel for petitioner consented to the extension, but indicated that it would be filing proceeding No. 2 to challenge the $49,400,000.00 assessment for the 2016/2017 tax year and requested that the appraisal reports pertain to both years. Counsel for respondents consented to this request and the date for filing of appraisal reports was extended to July 1, 2016. Counsel for the parties also agreed to consolidate the proceedings after the filing of proceeding No. 2 and, further, to try both proceedings on October 6, 2016.[FN1]

The Court Clerk subsequently returned petitioner's initial appraisal report to its counsel and petitioner filed a new appraisal report on June 30, 2016, which included valuations for both the 2015/2016 and 2016/2017 tax years. Respondents filed their appraisal report in a timely manner as well, but the report erroneously included only a valuation for the 2015/2016 tax year. Petitioner filed proceeding No. 2 on July 19, 2016 and, on July 21, 2016, the Court conducted a third telephone conference. At that time, respondents requested an extension of time to file a amended appraisal report including valuations for both the 2015/2016 and 2016/2017 tax years. Petitioner objected, contending that if respondents were permitted to file an amended appraisal report it would put petitioner "at a significant disadvantage, especially when one considers that respondents now have the advantage of having petitioner's 2016/17 analysis before having to commit to a position regarding that year's value."[FN2] The Court advised that a motion would be necessary to resolve the issue if the parties could not reach a resolution. Respondents filed their amended appraisal report on August 1, 2016 and petitioner then filed motions to preclude the report in both proceeding Nos. 1 and 2, which motions were returnable on August 19, 2016.

BCSD subsequently filed a motion to dismiss proceeding No. 2 based upon petitioner's failure to provide it with timely notice of the proceeding, which motion was returnable on October 6, 2016. Petitioner then cross-moved to dismiss the affirmative defenses raised by BCSD in its answer. The Court proceeded with the trial in proceeding Nos. 1 and 2 — which trial was held on October 6, 2016 and October 17, 2016 — and reserved its decision on the pending motions and cross motion.

In the process of opposing BCSD's motion to dismiss in proceeding No. 2, petitioner discovered that the Assessor of the Town failed to, inter alia, file a certified copy of the final assessment rolls for the 2015/2016 and 2016/2017 tax years with the Town Clerk. Instead, he filed it in his own office just down the hall from the Town Clerk, apparently because "the Town Clerk is a part time position and the Town Assessor is a full-time position, [so] by keeping the [a]ssessment [r]oll in the Town Assessor's office, there is greater accessibility of the roll to the general public." As a result of this failure, Petitioner filed proceeding No. 3 — a hybrid CPLR article 78 and RPTL article 7 proceeding — seeking to invalidate the final assessment rolls for the 2015/2016 and 2016/2017 tax years. The Town then filed a motion to dismiss proceeding No. 3, which motion was returnable on February 27, 2017. The Court will now address in seriatim the pending motions and cross motion in proceeding Nos. 1 through 3.

Motions to Preclude in Proceeding Nos. 1 and 2

Petitioner first contends that respondents' amended appraisal report must be precluded because it was not filed in a timely manner.

Under CPLR 3126 (2), "[i]f any party . . . refuses to obey an order for disclosure . . . ,

the court may make . . . an order prohibiting the disobedient party . . . from producing in evidence designated things or items of testimony. Insofar as RPTL article 7 proceedings are concerned, Uniform Rules for Trial Courts (22 NYCRR) § 202.59 (h) further provides as follows: "Any party who fails to serve an appraisal report as required by this section shall be precluded from offering any expert testimony on value; provided, however, upon the application of any party on such notice as the court shall direct, the court may, upon good cause shown, relieve a party of a default in the service of a report, extend the time for exchanging reports, or allow an amended or supplemental report to be served upon such conditions as the court may direct."

At the outset, it must be noted that this contention is unavailing insofar as proceeding No. 1 is concerned, as the appraisal report initially filed by respondents included a valuation for the 2015/2016 tax year. With respect to proceeding No. 2, while the parties agreed to include the valuation for both the 2015/2016 and 2016/2017 tax years in the appraisal reports, this agreement was not so-ordered by the Court — nor could it have been. Indeed, proceeding No. 2 had not yet been filed when the agreement was reached during the May 2016 telephone conference. Furthermore, petitioner has suffered no prejudice as a result of respondents' late filing of the amended appraisal report. Indeed, the record in no way supports petitioner's contention that it was disadvantaged because respondents were able to review its appraisal report for the 2016/2017 tax year before submitting their own appraisal report for that tax year. The Court must also note that — even if prejudice did result — it would be disinclined to preclude the amended report, as counsel for petitioner voluntarily agreed to forego the simultaneous filing requirements of Uniform Rules for Trial Courts (22 NYCRR) § 202.59 (g). Under the circumstances, the Court declines to preclude respondents' amended appraisal report relative to proceeding No. 2 and instead excuses its late filing (see Uniform Rules for Trial Courts [22 NYCRR] § 202.59 [h]).

Petitioner next contends that respondents' amended appraisal report must be precluded because it fails to include "the facts, figures and calculations by which the conclusions were reached," as required under Uniform Rules for Trial Courts (22 NYCRR) § 202.59 (g) (2).

"While it is true that 'the submission of an appraisal without ascertainable or verifiable data supporting the appraiser's conclusions of value constitute[s] a violation of 22 NYCRR 202.59 (g) (2)'" (Matter of Golub Corporation/Price Chopper Operating Co. v Assessor of Town of Queensbury, 282 AD2d 962, 963 [2001], quoting Matter of Orange & Rockland Utils. v Williams, 187 AD2d 595, 596 [1996]; see Matter of Gran Dev., LLC v Town of Davenport Bd. of Assessors, 124 AD3d 1042, 1044 [2015]), the rationale behind this rule "'is that a failure to disclose such facts and source materials at the appraisal stage will effectively deny opposing counsel the opportunity to adequately prepare for cross-examination'" (Matter of Golub Corporation/Price Chopper Operating Co. v Assessor of Town of Queensbury, 282 AD2d at 963, quoting Matter of Niagara Mohawk Power Corp. v Town of Bethlehem Assessor, 225 AD2d 841, 843 [1996]; see Matter of Gran Dev., LLC v Town of Davenport Bd. of Assessors, 124 AD3d at 1044).

Here, the parties stipulated that respondents' appraiser was qualified and, as such, there is no issue in this regard. With that said, the Court finds that respondents' appraiser sufficiently identified the comparable properties used in his report and adequately set forth his analysis such that petitioner was in no way prejudiced (see Matter of Gran Dev., LLC v Town of Davenport Bd. of Assessors, 124 AD3d at 1045; Matter of Golub Corporation/Price Chopper Operating Co. v Assessor of Town of Queensbury, 282 AD2d at 963). The Court therefore declines to preclude respondents' amended appraisal report based upon a failure to include the facts, figures and calculations by which the appraiser reached his conclusions.

Based upon the foregoing, petitioner's motions to preclude are denied in their entirety.

Motion and Cross Motion to Dismiss in Proceeding No. 2

Turning first to the motion, BCSD contends that proceeding No. 2 must be dismissed based upon petitioner's failure to provide it with timely notice of the proceeding.

RPTL 708 (3) provides that, within 10 days of the date of service of the petition and notice on the assessor, "one copy of the petition and notice shall be mailed . . . to the superintendent of schools of any school district within which any part of the real property on which the assessment to be reviewed is located." The "[f]ailure to comply with the provisions of this section shall result in . . . dismissal of the petition, unless excused for good cause shown" (RPTL 708 [3]). "Where . . . there is no service pursuant to RPTL 708 (3), the mere absence of prejudice cannot be considered good cause to excuse the defect" (Matter of Wyeth Holdings Corp. v Assessor of the Town of Orangetown, 84 AD3d 1104, 1106 [2011]; see Matter of Highbridge Dev. BR, LLC v Assessor of the Town of Niskayuna, 121 AD3d 1324, 1325 [2014]; Matter of Board of Mgrs. of Copley Ct. Condominium v Town of Ossining, 79 AD3d 1032, 1033 [2010], affd 19 NY3d 869 [2012]; Matter of Landesman v Whitton, 46 AD3d 827, 828 [2007]; Matter of Orchard Hgts., Inc. v Yancy, 15 AD3d 854, 854 [2005]; Matter of Premier Self Stor. of Lancaster v Fusco, 12 AD3d 1135, 1136 [2004]). With that said, however, "late service pursuant to RPTL 708 (3) may be excused in the absence of prejudice" (Matter of Landesman v Whitton, 46 AD3d at 828; see Matter of Harris Bay Yacht Club, Inc. v Town of Queensbury, 46 AD3d 1304, 1306 [2007]; Matter of Bloomingdale's, Inc. v City Assessor of City of White Plains, 294 AD2d 570, 571 [2002], lv dismissed 99 NY2d 553 [2002]). It must also be noted that "mistake or omission of [the] petitioner's attorney does not constitute 'good cause shown' within the meaning of RPTL 708 (3) to excuse [the] petitioner's failure to comply with that section" [*3](Matter of Wyeth Holdings Corp. v Assessor of the Town of Orangetown, 84 AD3d at 1106; Matter of Board of Mgrs. of Copley Ct. Condominium v Town of Ossining, 79 AD3d at 1033-1034; Matter of Orchard Hgts., Inc. v Yancy, 15 AD3d at 854; Matter of First Source Fed. Credit Union v Stuhlman, 267 AD2d 1026, 1027 [1999]).

Here, the Assessor of the Town was served with the petition and notice in proceeding No. 2 on July 20, 2016.[FN3] Counsel for petitioner then erroneously sent a copy of the notice and petition to the Superintendent of the Plattsburgh City School District — rather than the Superintendent of BCSD — on July 28, 2016. This mistake was discovered on August 8, 2016 and immediately corrected, with counsel for petitioner sending the notice and petition to the Superintendent of BCSD that same day. According to counsel for petitioner, the "mistake was caused by simultaneous commencement, service and notification requirements in multiple tax certiorari proceedings, and several personal family matters." BCSD subsequently served its answer in proceeding No. 2 on September 8, 2016, alleging four affirmative defenses: (1) that petitioner failed to state a cause of action; (2) that the proceeding is barred by the statute of limitations; (3) that petitioner failed to exhaust its administrative remedies; and (4) that the Court lacks personal jurisdiction. BCSD then filed the instant motion to dismiss on September 28, 2016, approximately one week before the trial began.

Although the notice and petition were sent to the Superintendent of BCSD late as the result of a mistake by counsel for petitioner — which mistake does not, in and of itself, constitute good cause (see Matter of Wyeth Holdings Corp. v Assessor of the Town of Orangetown, 84 AD3d at 1106; Matter of Board of Mgrs. of Copley Ct. Condominium v Town of Ossining, 79 AD3d at 1033-1034; Matter of Orchard Hgts., Inc. v Yancy, 15 AD3d at 854; Matter of First Source Fed. Credit Union v Stuhlman, 267 AD2d at 1027) — the Court nonetheless excuses petitioner's failure to comply with RPTL 708 (3). The notice and petition were sent only 9 days late and, further, BCSD has suffered absolutely no prejudice. Indeed, counsel for BCSD participated in a conference with the Court on July 21, 2016, at which time she was notified of the recent filing of proceeding No. 2. During that conference, the Court inquired as to the exact date of filing and, further, as to whether a request for judicial intervention (RJI) had been filed. Counsel for petitioner then sent correspondence on July 21, 2016 advising that the notice, petition and RJI were filed on July 19, 2016. Counsel for the Town and BCSD were both copied on this correspondence. Perhaps most significantly, however, all counsel — including counsel for BCSD — expressly agreed during the May 2016 conference with the Court that the appraisal reports would include valuations for both the 2015/2016 and 2016/2017 tax years and, further, that both proceeding Nos. 1 and 2 would be tried on October 6, 2016. Under the circumstances, [*4]the Court finds good cause to excuse petitioner's failure to timely send BCSD copies of the notice and petition (see Matter of Harris Bay Yacht Club, Inc. v Town of Queensbury, 46 AD3d at 1306 [2007]; Matter of Bloomingdale's, Inc. v City Assessor of City of White Plains, 294 AD2d at 571; cf. Matter of Village Sq. of Penna v Semon, 290 AD2d 184, 187 [2002], lv dismissed 98 NY2d 647 [2002]).

Briefly — and as further discussed below — the time in which to file proceeding No. 2 has not yet begun to run based upon the admitted failure of the Assessor of the Town to file a certified copy of the assessment roll in the office of the Town Clerk (see RPTL 516 [1], 702 [2]). Therefore, even if the Court were to dismiss proceeding No. 2 based upon petitioner's failure to send BCSD copies of the notice and petition in accordance with RPTL 708 (3), it would appear that the proceeding could simply be recommenced.

Based upon the foregoing, BCSD's motion to dismiss proceeding No. 2 is denied in its entirety.

Turning now to the cross motion, even "accept[ing] the facts alleged by [BCSD] as true and afford[ing it] the benefit of every reasonable inference" (DeThomasis v Viviano, 148 AD3d 1338, 1339 [2017]), the Court nonetheless finds that petitioner has met its burden of demonstrating that BCSD's affirmative defenses lack merit as a matter of law (see CPLR 3211 [b]). There is simply nothing in the record to support the first and third affirmative defenses, both of which are boilerplate and set forth in conclusory fashion. Insofar as the second affirmative defense is concerned, the Court's decision to excuse petitioner's failure to timely send BCSD copies of the notice and petition effectively precludes any allegation that the proceeding is barred by the statute of limitations. Finally, with respect to the fourth affirmative defense alleging lack of personal jurisdiction, it is by now well established that "the mailing of a copy of the notice of petition and petition to a school district does not commence the proceeding, does not of itself constitute 'service,' and is, in fact, insufficient to confer party status upon a school district" (Matter of Village Sq. of Penna v Semon, 290 AD2d at 186; see RPTL 708 [3]; cf. Matter of Liberty Mgt. of NY v Assessor of Town of Glenville, 284 AD2d 61, 64 [2001] [party status obtained by a school district's subsequent service of a verified answer or notice of appearance]). This affirmative defense is therefore also without merit.

Based upon the foregoing, petitioner's cross motion to dismiss BCSD's affirmative defenses is granted in its entirety.

Motion to Dismiss in Proceeding No. 3

The Town contends that it is entitled to dismissal of proceeding No. 3 based upon petitioner's failure to state a cause of action (see CPLR 3211 [a] [7]).

RPTL 516 (1) provides as follows:

"On or before the first day of July, the assessor or assessors shall complete the final assessment roll, deliver the original to the clerk of the county legislative body, and prepare and file a certified copy in the office of the city or town clerk. The assessor or assessors shall forthwith cause a notice to be published once in the official newspaper of such city or town, or if no newspaper has been designated the official newspaper, in a newspaper having general circulation in such city or town, stating that the final assessment roll has been completed and a certified copy thereof so filed for public inspection. In towns, the assessors shall also cause a copy of the published notice to be [*5]posted on the signboard maintained for the posting of legal notices at the entrance of the town clerk's office . . . ."

With that said, "[t]he cases have consistently held that a showing of injury or prejudice is required before [the] procedures set forth in [RPTL 516] will be regarded as mandatory" (Matter of Draper Div. of N. Am. Rockwell Corp. v Board of Assessors of Town of Piercefield, 37 AD2d 1038, 1038 [1971]; see Handy v D'Onofrio Bros. Constr. Corp., 59 AD2d 254, 256 [1977]; Margeson v Smith, 41 AD2d 896, 897 [1973]). Therefore, the "[f]ailure to comply with [the procedures] does not in and by itself void the tax roll" (Matter of Draper Div. of N. Am. Rockwell Corp. v Board of Assessors of Town of Piercefield, 37 AD2d at 1038).

Here, petitioner has not — nor could it — alleged any injury or prejudice as a result of the Town's failure to follow the procedures set forth in RPTL 516. The Court therefore finds that the verified petition in proceeding No. 3 fails to state a cause of action and grants the Town's motion to dismiss in its entirety.

Briefly, inasmuch as the Court is granting the relief requested in proceeding Nos. 1 and 2 in the Findings of Fact and Conclusions of Law issued contemporaneously herewith, proceeding No. 3 would likely be discontinued in any event — at least based upon the representations made by petitioner in its opposition to the motion.

To the extent not specifically addressed herein, the parties' remaining contentions have been considered and are either academic or without merit.

Therefore, with respect to the motions to preclude in proceeding Nos. 1 and 2, having considered the Affidavit of Paul Morrison-Taylor, Esq. with exhibits attached thereto, sworn to August 9, 2016, submitted in support of the motion in proceeding No. 1; Affidavit of Paul Morrison-Taylor, Esq. with exhibits attached thereto, sworn to August 9, 2016, submitted in support of the motion in proceeding No. 2; Affirmation of Daniel G. Vincelette, Esq. dated August 15, 2016, submitted in opposition to both motions; and Reply Affidavit of Paul Morrison-Taylor, Esq. with exhibits attached thereto, submitted in further support of both motions;

And, with respect to the motion and cross motion to dismiss in proceeding No. 2, having considered the Affidavit of Katherine E. Gavett, Esq. with exhibits attached thereto, sworn to September 23, 2016, submitted in support of the motion; Affidavit of Daniel Mannix, sworn to September 26, 2016, submitted in support of the motion; Affidavit of Brian Dowling with exhibit attached thereto, sworn to September 23, 2016, submitted in support of the motion; Memorandum of Law of Katherine E. Gavett, Esq., dated September 23, 2016, submitted in support of the motion; Affidavit of Paul Morrison-Taylor, Esq. with exhibits attached thereto, sworn to October 3, 2016, submitted in opposition to the motion and in support of the cross motion; Affidavit of William E. Allan with exhibit attached thereto, sworn to August 17, 2016, submitted in opposition to the motion and in support of the cross motion; Brief of Paul Morrison-Taylor, Esq., dated October 3, 2016, submitted in opposition to the motion and in support of the cross motion; Affidavit of Brian Dowling, sworn to October 4, 2016, submitted in opposition to the cross motion and in further support of the motion; and Memorandum of Law of Katherine E. Gavett, Esq., dated October 5, 2016, submitted in opposition to the cross motion and in further support of the motion;

And, with respect to the motion to dismiss in proceeding No. 3, having considered the [*6]Affirmation of Stephen M. Almy, Esq. with exhibits attached thereto, dated February 16, 2017, submitted in support of the motion; Affidavit of Brian Dowling with exhibits attached thereto, sworn to February 15, 2017, submitted in support of the motion; Memorandum of Law of Stephen M. Almy, Esq., dated February 16, 2017, submitted in support of the motion; Memorandum of Law of Paul Morrison-Taylor, Esq., dated April 3, 2017, submitted in opposition to the motion; and Memorandum of Law of Katherine E. Gavett, Esq., dated April 4, 2017, submitted in support of the motion, it is hereby

ORDERED AND ADJUDGED that petitioner's motions to preclude in proceeding Nos. 1 and 2 are denied in their entirety; and it is further

ORDERED AND ADJUDGED that BCSD's motion to dismiss proceeding No. 2 is denied in its entirety; and it is further

ORDERED AND ADJUDGED that petitioner's cross motion to dismiss BCSD's affirmative defenses in proceeding No. 2 is granted in its entirety and the affirmative defenses dismissed; and it is further

ORDERED AND ADJUDGED that the Town's motion to dismiss in proceeding No. 3 is granted in its entirety and the petition dismissed.

The original of this Decision, Order and Judgment has been filed by the Court together with the Notice of Motion in proceeding No. 1 dated August 9, 2016, the Notice of Motion in proceeding No. 2 dated August 9, 2016, the Notice of Motion in proceeding No. 2 dated September 27, 2016, the Notice of Cross Motion in proceeding No. 2 dated October 3, 2016, the Notice of Motion in proceeding No. 3 dated February 16, 2017 and the submissions enumerated above. Counsel for petitioner is hereby directed to promptly obtain a filed copy of this Decision, Order and Judgment for service with notice of entry upon respondents in accordance with CPLR 5513.

Dated: May 24, 2017

Lake George, New York

ROBERT J. MULLER, J.S.C. Footnotes

Footnote 1:It does not appear that a stipulation consolidating the proceedings was ever filed.

Footnote 2:Notwithstanding the simultaneous filing requirements of Uniform Rules for Trial Courts (22 NYCRR) § 202.59 (g), the parties apparently agreed to send copies of their appraisal reports directly to one another "as a matter of convenience and expediency."

Footnote 3:The Court notes that there is some discrepancy as to when the Assessor was served. Specifically, while the affidavit of service indicates that the Assessor was served on July 23, 2016, the Assessor himself has submitted an affidavit indicating that his office is closed on weekends he "was not [there] on Saturday, July 23, 2016 . . . and therefore was not served at that time . . . ." According to the Assessor, he "was served with three (3) copies of the RJI, Notice of Petition and Petition on July 20, 2016." While the Court finds it largely inconsequential whether the Assessor was served on July 20 or July 23, the July 20 date — which appears to be more plausible — has been adopted for purposes of this Decision, Order and Judgment.