Karim Sidi v. City of New Haven (2009)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 105)

On August 6, 2009 the plaintiff, Karim Sidi c/o Bellerive Investment, Inc., filed a motion for summary judgment on the ground that there is no genuine issue of material fact as to the value of the property and that he is entitled to a judgment as a matter of law.   For reasons more fully set forth, this court denies the motion.

This dispute arises out of an appeal from the City of New Haven's valuation, for purposes of property taxation, of the property located at 161 Ella Grasso Boulevard in New Haven, Connecticut (the property), which is owned by the plaintiff.   On May 22, 2009, the plaintiff brought this action against the defendant, the city of New Haven, alleging that “[t]he valuation of this property placed thereon by the assessors, was not that percentage of its true and actual value on that assessment date, but was grossly excessive and disproportionate and unlawful.”

The plaintiff is and was at all relevant times the record owner of the property.   The assessors of the city of New Haven valued the property on October 1, 2006, the assessment date, at $519,900, and determined that all property should be liable for taxation at seventy percent of its true and actual valuation on that assessment date.   The plaintiff applied to the New Haven board of assessment appeals (the board) claiming to be aggrieved by the action of the assessors and offered to be sworn and answer all questions concerning the property.   On April 7, 2009, the board denied the application.   The plaintiff appealed from the action of the board and requested that the assessment be reduced to seventy percent of its “true and actual value.”

In support of his motion for summary judgment, the plaintiff submitted a memorandum of law and four exhibits.¹  On September 11, 2009, the defendant filed a memorandum of law in opposition to the plaintiff's motion for summary judgment.   On September 14, 2009, the plaintiff filed a reply memorandum of law.   The parties argues their positions at Short Calendar on September 14, 2009.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).

In the motion for summary judgment, the plaintiff argues that there is no genuine issue of material fact that the fair market value of the property is $103,000.   In support of his argument, the plaintiff relies on an appraiser's affidavit dated August 7, 2007.   The affidavit, which was compiled to determine the value for the property in the foreclosure action, Bellerive Investment, Inc. v. Eaco Partnership, LLC, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 06 4018840, attested that the fair market value of the property was $103,000.   In addition to attaching the affidavit, the plaintiff notes that, in deciding the motion for summary judgment in the foreclosure action, this court (Crawford, J. and Adams, J.) agreed with the appraiser's report and found the value of the subject property to be $103,000.   In his reply memorandum, the plaintiff asserts that “the [d]efendant knew or should have known at or around the time of the reassessment [of October 1, 2006], of the significant impairment and destruction in the property by its action against the subject property at the time.   On or around November 2006, the [d]efendant, [c]ity of New Haven, acting through its [l]ivable [c]ity [i]nitiative issued an [o]rder of [c]ondemnation for the subject property, deeming it unfit for human habitation ․ This [c]ondemnation order should trigger a consideration under the provision of [General Statutes] § 12-64a, whereby an interim reassessment shall be required.”

The defendant counters that there remains a genuine issue of material fact as to the fair market value of the property for the following reasons:  “(1) the market value cannot be determined by the value placed on the property in a foreclosure action;  (2) the value accepted by the foreclosure court is not binding on this court;  (3) the valuation placed on the property by the foreclosure court was not at a date relevant to the assessment date of the property;  (4) the property was valued on October 1, 2006 and remains the value until reassessed;  and (5) the valuation of the property is the ultimate issue to be determined after expert evidence is presented by both parties at trial.”

General Statutes § 12-117a, formerly codified at General Statutes § 12-118, provides a remedy for a taxpayer who is “claiming to be aggrieved by [an] action of the board of tax review or the board of assessment appeals ․” “[A]n owner of property may directly call in question the valuation placed by assessors upon his property by an appeal to the board of [tax review for] relief, and from it to the courts.”  (Internal quotation marks omitted.)   Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339, 597 A.2d 326 (1991).  “[I]t is the taxpayer who bears the burden of establishing an overassessment and of persuading the trial court of the true and actual value of his property for assessment purposes.”  Ireland v. Wethersfield, 242 Conn. 550, 557, 698 A.2d 888 (1997).   Further, other Superior Courts have determined that it is an issue of fact, whether a property has been overassessed.   See, e.g. Acquaviva v. Groton Board of Assessment Appeals, Superior Court, judicial district of New London at Norwich, Docket No. CV 07 4008561 (July 29, 2009, Purtill, J.T.R) (“Whether a property has been overvalued for tax assessment purposes is a question of fact for the trier ․ The trier arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value including his own view of the property ․”).

General Statutes § 12-63 mandates that [t]he present true and actual value of ․ [the] property shall be deemed by all assessors and boards of [assessment appeals] to be the fair market value thereof and not its value at a forced auction or sale .. .[T]he market approach to value consists in analyzing and collecting information concerning sales of comparable properties ․ making allowances for any dissimilarities, considering present market conditions and future market trends to arrive at a fair market value.”  (Emphasis added;  internal quotation marks omitted.)  Gorin's, Inc. v. Board of Tax Review, 178 Conn. 606, 609, 424 A.2d 282 (1979).

The plaintiff also argues that he is entitled to a reassessment under § 12-64a, which provides in relevant part:  “(a) Whenever a building is so damaged as to require total reconstruction before it may be used for any purpose related to its use prior to such damage and following which, the owner provides for complete demolition of such building with the material from demolition being removed from the parcel of real property on which the building was situated ․ such parcel shall be assessed for purposes of property tax as of the date of such demolition, removal and grading are completed ․” The trigger for the reassessment is the complete reconstruction or the total demolition of the building.   See, e.g. Lucifora v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375486 (May 8, 2003, Aronson, J.T.R.) (“General Statutes § 12-64a compels an interim revaluation under the limited circumstances of damage to the property requiring either complete demolition or total reconstruction.   The legislature has not provided any other statutory exception, and the Supreme Court has declined to recognize non-statutory exceptions”).

In the present case, it is undisputed that the assessors of the City of New Haven valued the property on October 1, 2006 at $519,900.   It is also undisputed that the value of the property was appraised to be $103,000 on August 7, 2007, and that subsequently, Judges Crawford and Abrams agreed with the appraisal amount in a foreclosure action.   What remains in dispute is the fair market value of the property for tax purposes.

Although the plaintiff asserts that the value of the property as assessed in the foreclosure action is the fair market value, case law has made clear that the market value is not synonymous with the value as assessed in a foreclosure sale.   The value assessed in the foreclosure court does necessarily apply in other actions pertaining to the value of the property.   Even after the value of a particular property has been determined in a foreclosure action, parties must provide evidence at trial as to the fair market value of the property for tax purposes.   It is the role of the fact finder to determine the fair market value of the property.

Further, despite the plaintiff's assertion that § 12-64a requires a reassessment, this court finds that the plaintiff is not entitled to a reassessment of the property value because there was no damage to the property requiring either complete demolition or total reconstruction.   Thus, in the present case, there remains a genuine issue of material fact as to the fair market value of the property, which is to be determined by the trier of fact after hearing evidence presented by both parties at trial.

For the foregoing reasons, the court denies the plaintiff's motion for summary judgment

Robinson, A.,J.

FOOTNOTES

FN1. These exhibits included:  (1) affidavit of an appraiser;  (2) notice of modification of judgment of strict foreclosure;  (3) motion for deficiency judgment;  (4) certificate of foreclosure.   It is within the discretion of the court to consider the admissibility of these documents, notwithstanding a lack of their authentication.   See Barlow v. Palmer, 96 Conn.App. 88, 898 A.2d 835 (2006)..  FN1. These exhibits included:  (1) affidavit of an appraiser;  (2) notice of modification of judgment of strict foreclosure;  (3) motion for deficiency judgment;  (4) certificate of foreclosure.   It is within the discretion of the court to consider the admissibility of these documents, notwithstanding a lack of their authentication.   See Barlow v. Palmer, 96 Conn.App. 88, 898 A.2d 835 (2006).

Robinson, Angela C., J.