Merin v. Morris Township

TAX COURT OF NEW JERSEY

VITO L. BIANCO

JUDGE

77 HEADQUARTERS PLAZA

1ST FLOOR, NORTH TOWER

MORRISTOWN, NEW JERSEY 07960-3964

(973) 631-6400

FAX: (973) 631-6396

January 13, 2015

Via Regular mail and Facsimile to (973) 539-8759; (973 )215-2209

Mr. Kenneth S. Merin

2 Chadwell Place

Morristown, N.J. 07960

RE: Merin v. Morris Township

Docket Nos. 014675-2012 and 013553-2013

Dear Mr. Merin

I am in receipt of your letter to my law clerk, Kyle J. Weber, Esq., dated January 8, 2015.

Please be advised that due to your failure to appear on the scheduled trial/motion return date of January 5, 20151, your case was dismissed with prejudice for Failure to Prosecute.

See R. 8:8-4, R. 1:2-4, and R. 4:37-2. This letter shall serve to amplify the court s decision in this matter.

Notwithstanding your objection to my re-scheduling the return date of your recusal motion immediately before the trial, it is common court practice for motions before trial to be heard as a regular part of the litigation process, and there was nothing unusual or sinister in re-scheduling your motion before trial. In fact, re-scheduling your motion on the trial date was intentionally done as an accommodation to you and the defendant, to spare you both the time and expense of having to make two separate appearances before the court, should your motion be denied.

In your abstentia on Jan. 5th, I first decided that your motion was without merit and denied the same based upon the papers you submitted. Essentially, you claimed in your motion papers that I disregarded and failed to apply applicable case law during an earlier proceeding in this case; that is an issue for appeal and not an act of bias on my part. With regard to your claim that the official record was somehow tampered with to redact some comments you allege I made during that earlier proceeding; there is no one in my chambers or within the Tax Court Management Office with the technical sophistication to be able to manipulate CourtSmart, the court s official recording system. Furthermore, it is not clear that the manipulation of CourtSmart s recording system is even possible. Certainly your own affidavit in support of your motion is inconclusive on that issue. Accordingly, you asserted no facts that remotely suggest that I should recuse myself from this matter, and your motion was therefore denied. Moreover, I am satisfied that I am able to render a fair and impartial decision in this case.

The court then turned its attention to your failure to appear for trial. After receipt of your letter of December 22, 2014 (received on Dec. 24th), I instructed Mr. Weber to advise both parties that the motion and trial would proceed as scheduled. On December 31, 2014, he left you a detailed voice mail message2 that the motion and trial would proceed as scheduled at 9 A.M. on January 5, 2015, the date you had agreed to as part of a joint adjournment request three months earlier. 3 I note that in your Dec. 22nd letter you did not ask for an adjournment of the trial; and to the extent that said letter can be construed as a request of an adjournment of the motion, that request was denied and you were advised of the same. Your never had any legitimate basis or reasonable expectation that you were not to appear in court on Jan. 5th; you never asked for an adjournment, you were never excused from appearing, and you were expected to be here.

Mr. Lloyd was here promptly at 9 A.M. ready for the motion and trial on Jan. 5th. The Court was prepared to go on the bench precisely at that time. In deference to you, I waited until 9:30 A.M. before going out on the bench. I asked Mr. Lloyd to reach out to you by phone. Furthermore, both my court clerk and law clerk reached out for you by phone and email (despite you alleged objection to email4). No one was successful in reaching you; and you did not respond to messages left on answering machine until your January 8, 2015 letter.

Accordingly, the municipality moved to dismiss your complaint for Failure to Prosecute which motion was granted by this court. At that point it was approximately 10:20 A.M., long past the time you were expected in court. In dismissing your complaint, the court noted that your underlying claims on appeal from the judgment of the Morris County Board of Taxation (which lowered your assessment), were without merit. The court was satisfied that the Board properly applied the Chapter 123 ratio to your appeal.5

The court s reasons for denying your recusal motion and dismissing your complaint were placed on the record of January 5, 2015, and are further amplified here. Mr. Lloyd was directed to prepare an order denying your motion for recusal and dismissing the complaint with prejudice for Failure to Prosecute. Once the court signs that order, your case is no longer active before the Tax Court. Should you choose to appeal this court s decision(s) you should contact the Appellate Division of the Superior Court.

Very truly yours,

Vito L. Bianco, J.T.C.

Hon. Vito L. Bianco, J.T.C.

VLB:tms

Cc: John R. Lloyd, Esq. (via facsimile only) - (201) 343-5181

1 Mr. Merin also failed to appear at a case management conference on March 5, 2013, and neither party reported the status of a pending settlement at a Stipulation Calendar on May 29, 2014. Furthermore, the court notes that of the ten adjournments granted to various court proceedings in this matter, Mr. Merin made five of the adjournment requests, two were joint requests, and the remaining three were made by defendant s counsel.

2 A transcript of the message is part of the court s file. Mr. Merin claims to have objected to being contacted by email; the court, however, has often continued to include email as part of its contact with plaintiff, particularly when it has been difficult to reach him via alternative means of communication. Mr. Merin has a valid, working email address; no correspondence sent to him via his email address has been returned to the court as undeliverable.

3 An adjournment request of the October 2, 2014 trial date, was jointly made in writing by the parties in a letter from John R. Lloyd, Esq. to the court on Sept. 26, 2014. The new trial date of Jan. 5, 2015 was assigned and thereafter confirmed to both parties by my court clerk.

4 A specific objection to the court s contacting Mr. Merin via email could not be found until his recent letter of Dec. 22, 2014. Mr. Merin did object to opposing counsel contacting him by email in Feb. 2013, when said counsel apparently sent a message intended for plaintiff to an incorrect email address.

5 The County Board reduced Mr. Merin s assessment from $665,000 to $504,770. Mr. Merin seems to believe that the County Board concluded (or should have concluded) that $504,770 was the true value and not the assessed value of the subject property, to which the 2012 average ratio of 68.09% then should have been applied. That would have resulted in a new assessment of $343,700 (rounded). To accept Mr. Merin s position would mean that the County Board concluded a true value significantly below what the Mr. Merin s own expert concluded at $570,000. The court finds the County Board s 2012 judgment to be clear and unambiguous. The court s calculations indicate that the County Board s new assessment was reached by concluding that the true value of Mr. Merin s property was $741,327.65 (unrounded). When the original assessment of $665,000 is divided by the County Board s determined true value of $741,327.65, the percentage of assessment to true value is 89.70%. When applying Chapter 123, this percentage clearly exceeds the upper limit of the rage, which, for the 2012 tax year, was 78.30%. The County Board properly applied the applicable average ration of 68.09% to its determined true value of $741,327.65 to arrive at the new assessment of $504,770. The County Board correctly listed the judgment code of 1B on its judgment in this matter which indicates that the original [a]ssessment [was] outside [the] range (N.J.S.A. 54:3-22).