MARKHAM v. COMSTOCK (2007)

Petitioners commenced these consolidated proceedings pursuant to RPTL article 7 to challenge the assessments on their residential property for the 2004 and 2005 tax years.   In appeal No. 1, petitioners appeal from an order and judgment dismissing the petition for the 2004 tax year on the merits following a hearing, and dismissing the second petition based on the ruling at the outset of the hearing that petitioners' appraisal report for 2005 was inadmissible in view of the appraiser's failure to utilize the correct taxable status date for that tax year.   In appeal No. 2, petitioners appeal from an order denying their posthearing motion to reopen the record to accept a soil analysis report.

We conclude in appeal No. 1 that Supreme Court properly dismissed the petitions.   Petitioners failed to meet their burden of establishing by a preponderance of the evidence that the assessments for the tax years at issue were excessive (see Matter of Rosewood Prop. Co. v. Board of Assessment Review for Town of Hamburg, 309 A.D.2d 1163, 765 N.Y.S.2d 287, lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36).   The court's ultimate finding concerning the value of the property is within the range of the expert testimony and supported by substantial evidence, and the court adequately explained the basis for its ultimate finding (see Matter of Universal Packaging v. Assessor of City of Saratoga Springs, 259 A.D.2d 875, 686 N.Y.S.2d 241;  Matter of Alexander's Dept. Store of Val. Stream v. Board of Assessors, 227 A.D.2d 549, 551, 642 N.Y.S.2d 940;  Matter of Krebs v. Board of Assessors, 225 A.D.2d 625, 639 N.Y.S.2d 446;  Matter of O'Dwyer v. Robson, 103 A.D.2d 1036, 478 N.Y.S.2d 407).

 We further conclude in appeal No. 1 that the court properly excluded the appraisal evidence with respect to the 2005 tax year based on the appraiser's use of the incorrect taxable status date (see RPTL 301, as amended by L. 2004, ch. 733, § 1;  302[1];  Matter of SKM Enters., Inc. v. Town of Monroe, 2 Misc.3d 1004(A), 2004 N.Y. Slip Op. 50138[U], *3-4, 2004 WL 503485;  see also Matter of Northville Indus. Corp. v. Board of Assessors of Town of Riverhead, 143 A.D.2d 135, 136, 531 N.Y.S.2d 592).   We have considered petitioners' remaining contention in appeal No. 1 and conclude that it is without merit.

 Finally, we conclude with respect to appeal No. 2 that the court did not abuse its discretion in denying petitioners' posthearing motion to reopen the record.   Although a court has discretion to grant leave to reopen a matter to allow additional proof (see Kay Found. v. S & F Towing Serv. of Staten Is., Inc., 31 A.D.3d 499, 501, 819 N.Y.S.2d 765;  Matter of Dutchess County Dept. of Social Servs. v. Shirley U., 266 A.D.2d 459, 460, 698 N.Y.S.2d 535), that discretion should be exercised sparingly (see Kay Found., 31 A.D.3d at 501, 819 N.Y.S.2d 765;  Lindenman v. Kreitzer, 7 A.D.3d 30, 33, 775 N.Y.S.2d 4;  King v. Burkowski, 155 A.D.2d 285, 286, 547 N.Y.S.2d 48). Here, the motion was made belatedly (see Noga v. Noga, 235 A.D.2d 1002, 653 N.Y.S.2d 47;  Shapiro v. Shapiro, 151 A.D.2d 559, 560-561, 542 N.Y.S.2d 339), and “[t]his is not an instance in which a party [sought] ‘to reopen and supply defects in evidence which have inadvertently occurred’ ” (Matter of Radisson Community Assn., Inc. v. Long, 28 A.D.3d 88, 91, 809 N.Y.S.2d 323, quoting Dutchess County Dept. of Social Servs., 266 A.D.2d at 460, 698 N.Y.S.2d 535).

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: