NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
Patrick DeAlmeida R.J. Hughes Justice Complex
Presiding Judge P.O. Box 975
Trenton, New Jersey 08625-0975
(609) 292-8108 Fax: (609) 984-0805
March 20, 2015
Ralph D. Gaeta
59 St. Davids Road
Springfield, Pennsylvania 19064
Alfred R. Scerni, Jr., Esq.
Parker McCay, P.A.
1809 Pacific Avenue, Suite 200
Atlantic City, New Jersey 08401-6803
Re: Ralph Gaeta and Dianna Vuocolo v. City of Brigantine
Docket No. 014796-2014
Dear Mr. Gaeta, Ms. Vuocolo and Mr. Scerni:
This letter constitutes the court’s opinion with respect to plaintiffs’ motion for summary
judgment. For the reasons explained more fully below, plaintiffs’ motion is denied. The matter
will be tried on April 13, 2015.
I. Findings of Fact and Procedural History
This letter opinion sets forth the court’s findings of fact and conclusions of law on
plaintiffs’ motion. R. 1:6-2(f). The following findings of fact are based on the pleadings and the
exhibits submitted on the motion. R. 1:6-2(d). No party requested oral argument.
Plaintiffs Ralph D. Gaeta and Dianna Vuocolo are the owners of a residence in defendant
City of Brigantine. The property is designated in records of the municipality as Block 4001, Lot
36 and is commonly known as 9 Hudson Cove. For tax year 2014, the property was assessed as
Improvements $ 82,600
Plaintiffs filed a Petition of Appeal with the Atlantic County Board of Taxation
challenging the assessment. On August 28, 2014, the county board issued a Judgment affirming
On October 3, 2014, plaintiffs filed a Complaint in this court challenging the board’s
Judgment. Because the subject property is a one- to four-family residence, the matter was
assigned to the small claims track. R. 8:11(a)(2).
On November 20, 2014, the court scheduled the matter for trial on Apri1 13, 2015.
On February 2, 2015, plaintiffs moved pursuant to R. 4:46-2 for summary judgment
seeking an Order compelling defendant to: “1) correct all property record cards to reflect
accurately subject property description and history as described herein; 2) correct the City of
Brigantine 'tax map’ to indicate 10435 s.f. for subject lot; [and] 3) direct the city of Brigantine to
vacate the 2014 assessment of 313400 and revert to the 2013 'memorandum of judgment’
assessment of 259000.”
As best as can be deciphered from plaintiffs’ moving papers, plaintiffs are of the opinion
that the tax year 2014 assessment on the subject property is incorrect because of various errors in
the municipality’s tax records. According to plaintiffs, the City’s tax map describes the subject
property as being 13,503 square feet in size when it is, in fact, 10,435 square feet in size. In
addition, plaintiffs contend that municipal tax records describe the property as being in “good”
condition, when, in fact, a representative of the city who inspected the property on an unspecified
date “indicated to the plaintiff that the subject property was 'average.’” Plaintiffs also contend
that municipal tax records contain inaccurate descriptions of other characteristics of the property
and do not reflect “’memorandum of judgment’ agreements for 2006, 2010 and 2013.”
Plaintiffs’ motion is supported solely by a certification signed by both plaintiffs to which
are attached property record cards, Judgments of the county board of taxation, excepts from the
City’s building code, a land title survey, a page from the City’s tax map, a description of the
subject property, and four photographs of cracks in a patio. Plaintiffs cite not a single statute,
court rule, or legal precedent in support of their motion.
The municipality opposes plaintiffs’ motion. The City argues that plaintiffs ask the court
to award relief on the central issue raised in the Complaint without offering any competent
evidence of the subject property’s true market value.
In reply to the municipality’s opposition, plaintiffs argue that they see “no value added to
waiting for trial since whatever ruling the court would make now with regard to the merits of this
motion would be no different at trial since the Plaintiff has nothing more to add.” In addition,
plaintiffs state that should their summary judgment motion be denied, they move “to have a
separate hearing or meeting at the earliest possible time before the trial to resolve the issues of
fact. This discussion should occur with the court present.” Plaintiffs argue that factual disputes
with respect to the characteristics of the property must be resolved before plaintiffs can retain an
appraisal expert because plaintiffs are “at a disadvantage until the facts are settled in that
realistically speaking an appraiser uses established facts not what if’s.”
II. Conclusions of Law
Summary judgment should be granted where “the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law.” R. 4:46-2. In Brill v. Guardian Life Ins. Co.,
520, 523 (1995), our Supreme Court established the standard for summary judgment as follows:
[W]hen deciding a motion for summary judgment under Rule 4:46-
2, the determination whether there exists a genuine issue with
respect to a material fact challenged requires the motion judge to
consider whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party
in consideration of the applicable evidentiary standard, are
sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party.
The court’s analysis begins with the well-established principle that “[o]riginal
assessments and judgments of county boards of taxation are entitled to a presumption of
validity.” MSGW Real Estate Fund, LLC v. Borough of Mountain Lakes,
18 N.J. Tax 364, 373
(Tax 1998). As Judge Kuskin explained, our Supreme Court has defined the parameters of the
presumption as follows:
The presumption attaches to the quantum of the tax assessment.
Based on this presumption the appealing taxpayer has the burden
of proving that the assessment is erroneous. The presumption in
favor of the taxing authority can be rebutted only by cogent
evidence, a proposition that has long been settled. The strength of
the presumption is exemplified by the nature of the evidence that is
required to overcome it. That evidence must be “definite, positive
and certain in quality and quantity to overcome the presumption.”
Ibid. (quoting Pantasote Co. v. City of Passaic,
100 N.J. 408, 413 (1985)(citations omitted)).
The presumption of correctness arises from the view “that in tax matters it is to be
presumed that governmental authority has been exercised correctly and in accordance with law.”
100 N.J. at 413 (citing Powder Mill, I Assocs. v. Township of Hamilton,
Tax 439 (Tax 1981)); see also Byram Twp. v. Western World, Inc.,
111 N.J. 222 (1988). The
presumption remains “in place even if the municipality utilized a flawed valuation methodology,
so long as the quantum of the assessment is not so far removed from the true value of the
property or the method of assessment itself is so patently defective as to justify removal of the
presumption of validity.” Transcontinental Gas Pipe Line Corp. v. Township of Bernards,
111 N.J. 507, 517 (1988).
“The presumption of correctness . . . stands, until sufficient competent evidence to the
contrary is adduced.” Little Egg Harbor Twp. v. Bonsangue,
316 N.J. Super. 271, 285-86 (App.
Div. 1998)(citation omitted); Atlantic City v. Ace Gaming, LLC,
23 N.J. Tax 70, 98 (Tax 2006).
“In the absence of a R. 4:37-2(b) motion . . . the presumption of validity remains in the case
through the close of all proofs.” MSGW Real Estate Fund, LLC, supra,
18 N.J. Tax at 377. In
making the determination of whether the presumption has been overcome, the court should
weigh and analyze the evidence “as if a motion for judgment at the close of all the evidence had
been made pursuant to R. 4:40-1 (whether or not the defendant or plaintiff actually so moves),
employing the evidentiary standard applicable to such a motion.” Ibid. The court must accept as
true the proofs of the party challenging the assessment and accord that party all legitimate
favorable inferences from that evidence. Id. at 376 (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 535 (1995)). In order to overcome the presumption, the evidence “must be
'sufficient to determine the value of the property under appeal, thereby establishing the existence
of a debatable question as to the correctness of the assessment.’” West Colonial Enters, LLC v.
City of East Orange,
20 N.J. Tax 576, 579 (Tax 2003)(quoting Lenal Props., Inc. v. City of
18 N.J. Tax 405, 408 (Tax 1999), certif. denied,
165 N.J. 488 (2000)), aff’d,
Tax 658 (App. Div. 2004).
Only after the presumption is overcome with sufficient evidence at the close of trial must
the court “appraise the testimony, make a determination of true value and fix the assessment.”
Rodwood Gardens, Inc. v. City of Summit,
188 N.J. Super. 34, 38-39 (App. Div. 1982). If the
court determines that sufficient evidence to overcome the presumption that the assessment is
correct has not been produced, the assessment shall be affirmed and the court need not proceed
to making an independent determination of value. Ford Motor Co. v. Township of Edison,
127 N.J. 290, 312 (1992); Global Terminal & Container Serv. v. City of Jersey City,
15 N.J. Tax 698,
703-04 (App. Div. 1996).
Plaintiffs have not produced sufficient evidence to resolve disputed issues of material fact
and establish as a matter of law that they are entitled to relief. The evidence plaintiffs produced
is insufficient both to overcome the presumption of validity attached to the assessment and
county board judgment and to determine that true market value of the subject property as of
October 1, 2013, the relevant valuation date.
The comparable sales approach is generally accepted as an appropriate method of
determining the true market value of residential property. Brown v. Borough of Glen Rock,
19 N.J Tax 366, 377 (App. Div.), certif. denied,
168 N.J. 291 (2001); Appraisal Institute, The
Appraisal of Real Estate, 419 (12th ed 2001)(the comparable sales approach “usually provides the
primary indication of market value in appraisals of properties that are not usually purchased for
their income-producing characteristics.”). This method of valuation has been defined as “[a] set
of procedures in which a value indication is derived by comparing the property being appraised
to similar properties that have been sold recently, applying appropriate units of comparison, and
making adjustments to the sales prices of the comparables based on the elements of comparison.”
Id. at 417.
Plaintiffs’ motion included no evidence of the sales of comparable properties in the
period around October 1, 2013. There is, a result, no evidence of market value before the court.
Without such evidence, it is impossible for the court to determine the true market value of
plaintiffs’ property. Plaintiffs’ moving papers contain little more than a recitation of their
opinions of various factual errors which they believe are contained in municipal records.
Plaintiffs’ opinions do not inform the court with respect to the market value of their property.
Plaintiffs also submitted a land title survey prepared by a third party. This document is
hearsay and is not admissible without the testimony of its author. Plaintiffs do not explain the
significance of the county board of taxation Judgments from prior tax years which they attached
to the moving papers. Nor do plaintiffs purport to explain the impact on market value of the
patio cracks depicted in the photographs submitted with their motion. In short, plaintiffs’ motion
is devoid of any competent evidence which could support an award of summary judgment.
Nor is the court persuaded by plaintiffs’ argument that the court must hold a hearing to
decide disputed factual issues prior to the trial of this matter. This is a small claims matter
concerning a single parcel of residential property. None of the issues raised in the moving
papers strikes the court as particularly complex. If, as plaintiffs claim, factual disputes exist
between the parties with respect to the characteristics of the subject property, those disputes can
be resolved at trial. As the parties challenging the assessment on the subject property, plaintiffs
bear the burden of proof. They should bring to trial any evidence and witnesses they believe will
be necessary to prove their case. The court will weigh the admissible evidence and make any
factual determinations necessary to resolve the claims raised in the Complaint.
Should plaintiffs decide to retain an expert real estate appraiser, that expert will offer an
opinion of true market value based on that expert’s view of the characteristics of the subject
property. It is for the court to determine whether that expert’s opinion is credible. Should the
court ultimately determine that one or more of the characteristics of the property differs from the
facts assumed by either party’s expert, the court can make adjustments to the opinions of value
offered into evidence to account for any factual determinations made at trial. Nothing in the
record suggests that a bifurcated hearing is necessary.1
In light of these findings and conclusions, plaintiffs’ motion for summary judgment is
denied. Trial of the matter will take place on April 13, 2015. An Order effectuating the court’s
decision is enclosed.
Very truly yours,
Patrick DeAlmeida, P.J.T.C.
The court notes that the time in which plaintiffs may retain an appraisal expert is quickly
running out. According to R. 8:6-1(b)(1)(ii), a party intending to rely on the testimony of any
person testifying as a valuation expert must serve a copy of that expert’s report on the opposing
party within twenty days of trial. On November 20, 2014, this matter was scheduled for trial on
April 13, 2015. March 24, 2015 is twenty days prior to April 13, 2015.