Martin v. Avon-By-The-Sea Borough

OF THE TAX COURT COMMITTEE ON OPINIONS

October 1, 2012

Ernest Bongiovanni, Esq.

Marriott, Callahan & Blair

2 405 State Highway 71

P.O. Box 200

Spring Lake Heights, NJ 07762

Barry A. Cooke, Esq.

Wilentz, Goldman & Spitzer

2 Industrial Way West

Eatontown, NJ 07724

Re: Martin v. Avon-By-The-Sea Borough

Docket No. 016544-2011

Dear Counsel:

This matter comes before the court on defendant s motion to dismiss the complaint or in the alternative, barring the testimony of plaintiff s expert and of comparable sales. The motion is brought on the ground that plaintiff has failed to provide any discovery, and in particular, has failed to provide defendant with an expert s report as to the value of the subject property, or with comparable sales. The motion is opposed. For the following reasons, the motion is denied.

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This action appeals the judgment of the Monmouth County Board of Taxation, which affirmed the local property tax assessment for tax year 2011 on property designated as Block 35, Lot 6.05 on the defendant municipality s tax map. The subject property is a single family residence, and the complaint was filed in the Tax Court as a small claims matter pursuant to R. 8:11(a)(2).

I find the following facts from counsels certifications submitted, respectively, in support of and in opposition to the motion. Defendant s counsel certified that as of the date of his certification, September 5, 2012, plaintiff had failed to provide an appraisal report or comparable sales. Plaintiff s counsel responded with a certification attaching a copy of an appraisal report, which he stated had previously been provided to defendant s assessor prior to the hearing before the Monmouth County Tax Board. Plaintiff s counsel also attached to his certification uncertified answers to defendant s interrogatories. Plaintiff s certification to the interrogatory answers was forwarded to defendant s counsel and to the court shortly thereafter. Defendant s counsel responded that the fact that a report was furnished at the county board level did not extinguish plaintiff s obligation to abide by court rules and that plaintiff should suffer the consequences of her violation with a dismissal of her complaint.

At the time that the motion was filed on September 10, 2012, trial was scheduled for September 26, 2012. While the motion was pending, that date was adjourned at the request of defendant s counsel, due to a scheduling conflict. The request was granted and trial was adjourned until October 24, 2012.

The court rules require appraisal reports to be served twenty (20) days prior to the trial date set forth in the case management notice or twenty (20) days prior to such other trial date designated by the court. R. 8:6-1(b)(1)(ii). Defendant s counsel is correct in his contention that the taxpayer s obligation to serve an appraisal report in connection with the Tax Court action is not satisfied simply because the taxpayer had provided a report for the county tax board hearing. Taxpayers frequently obtain new reports or use different comparable sales if they are unsuccessful in obtaining a reduced assessment from the county tax board, and the municipality is entitled to know what proofs the taxpayer will be relying upon in the Tax Court.

The appraisal report has now been supplied, and the trial date adjourned so that defendant will have plaintiff s report more than twenty days prior to the re-scheduled trial date. Any prejudice that may have been suffered by defendant is, therefore, cured. The court notes that defendant s motion papers contained no information regarding the service of its interrogatories, and did not assert failure to receive timely answers as a ground for the motion.

For the foregoing reasons, the motion is denied.

Very truly yours,

Gail L. Menyuk, J.T.C.