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Supreme Court, Saratoga County, New York.

MALTA TOWN CENTRE I, LTD., Petitioner, v. TOWN OF MALTA, Board of Assessment Review, Respondent.

Decided: March 19, 2003

Pott and Naviasky, LLP, Schenectady, for petitioner. Tabner, Ryan and Keniry, Albany, for respondent.

In this RPTL Article 7 proceeding, the petitioner has made a motion for summary judgment to reduce the 2002 assessment on its shopping plaza from $9,750,000.00 to $7,800,000.00, the amount that was stipulated to in open court and later confirmed by court order in separate proceedings as the assessment for the subject property for the tax years 1998, 1999, 2000 and 2001.   The order and judgment dated December 11, 2001, consistently with the on-the-record stipulation, stated, in part, that “the ․ reductions and revisions ․ are subject to the provision of Real Property Tax Law § 727 ․ [and] the assessment valuation ․ shall not be changed, subject to the provision of RPTL § 727(2) ․ for the next three succeeding assessment roles”.   The respondent cross-moves for an order to strike “․ all causes of action related to Real Property Tax Law § 727 ․” and a determination that as a matter of law, the Town's 2002 annual reassessment project under RPTL § 1573 constitutes a town wide reassessment within the meaning of RPTL § 727(2)(a).

 RPTL § 727 provides a period of respite during which neither the assessing municipality may change nor the owner may challenge an assessment for three years after a court-ordered assessment, whether stipulated to or not, subject to nine enumerated exceptions, one of which, relevant here, is a town wide reassessment.  Viacom Corp. v. Board of Assessors of the Town of Horseheads, 295 A.D.2d 791, 744 N.Y.S.2d 539 (3rd Dept.2002);  Matter of Rosen v. Assessor of the City of Troy, 261 A.D.2d 9, 699 N.Y.S.2d 787 (3rd Dept.1999). also see Matter of Owens Corning v. Board of Assessors of the Town of Bethlehem, 279 A.D.2d 118, 718 N.Y.S.2d 715 (3rd Dept.2001);  Matter of Akey v. Town of Plattsburgh, 300 A.D.2d 871, 754 N.Y.S.2d 378 (3rd Dept.2002).   Specifically § 727(2)(a) provides an exception when “there is a revaluation or update of all real property on the assessment role․”.

 Here it is not disputed that within approximately four months of the above order, the Town assessor increased the 2002 assessment by $1,950,000.00, a 25% increase over the stipulated to and court approved assessment.   By that fact alone, plaintiff has made a prima facie case entitling it to summary judgment, and the burden then shifts to the respondent to show one of the exceptions provided in RPTL § 727(2) applies and authorizes the change. see Akey, supra;  Matter of Benderson Development Co. v. Town of Niskayuna, 293 A.D.2d 864, 740 N.Y.S.2d 508 (3rd Dept.2002).

 First, the respondent would have this court determine that, as a matter of law, a municipality's participation in and compliance with a state aid program under RPTL § 1573 constitutes a Town wide reassessment contemplated by RPTL § 727(2)(a).   Had the Legislature wanted to add such participation to the list of exceptions in RPTL § (2), it could have done so, but it has not, and it is beyond the authority of this court to add to that list of exceptions.

Moreover, RPTL § 1573 authorizes the payment of state aid to a municipality to defray the expense of updating the assessment roles and establishes certain criteria for a determination whether the municipality's program qualifies for this state aid.   The statute specifically sets forth as a criteria “annually conducting a systematic analysis of all locally assessed properties using a methodology specified in such regulations․” (RPTL § 1573 [2][b][i][B]).  A “revaluation” or an “update” mentioned in RPTL § 727(2) is defined elsewhere at RPTL § 102 (12-a) as a “․ systematic review of the assessments of all locally assessed properties ․ to obtain compliance with the standards of assessments set forth ․” in RPTL § 305(2).   The criteria mentioned in RPTL § 1573 and the definition of “revaluation” or “update” in RPTL § 727(2) are not the same.   Moreover, RPTL § 1573 includes as a criteria that the municipality need only implement a local program “physically inspecting and reappraising each parcel at least once every six years”.  (RPTL § 1573[2][b][i][D] [emphasis supplied]).   In short, participation in a RPTL § 1573 program is not the equivalent of a townwide revaluation under RPTL § 727(2)(a).

The issue on this summary judgment boils down to whether the Town undertook and performed a town wide revaluation or update in 2002 of all properties in the Town.   It is axiomatic that on a motion for summary judgment, that the court must, for the limited purpose of the motion, accept as true the allegations of fact made by the opponent to the motion, in this case, the respondent, and to give those allegations every favorable and reasonable inference in arriving at a determination whether triable issues of fact exist, resolution of which must await trial.  Wenger v. Goodell, 288 A.D.2d 815, 817, 733 N.Y.S.2d 523 (3rd Dept.2001), lv. denied 98 N.Y.2d 605, 746 N.Y.S.2d 279, 773 N.E.2d 1017 (2002);  Boston v. Dunham, 274 A.D.2d 708, 709, 711 N.Y.S.2d 54 (3rd Dept.2000).   In this case, the respondent has offered the affidavit of the retained attorney, not the Town Attorney, the affidavit of the Town Assessor, and the May 2002 “Guidelines for Annual Assessment” promulgated by the New York State Office of Real Property Services for the RPTL § 1573 state aid program.   While the affirmation of a retained attorney is of no probative value on matters outside his personal knowledge, Hasbrouck v. City of Gloversville, 102 A.D.2d 905, 477 N.Y.S.2d 486 (3rd Dept. 1984), affd. 63 N.Y.2d 916, 483 N.Y.S.2d 214, 472 N.E.2d 1042 (1984), the Town retained attorney concludes that “․ the Town has conducted a valid annual reassessment for the 2002 assessment role consistent with state law and the guidelines of the New York State Office of Real Property Services NYSORPS․”.  In her affidavit, the Town Assessor offers that the Town “․ has participated in the New York Office of Real Property Services's annual reassessment program since its inception in 1999” and that “[U]nder the reassessment plan, participating Towns must conduct an annual systematic analysis of all properties in the municipality․”.  The Assessor then adds that “․ I analyze and reevaluate the market data and assess values of all commercial properties within the Town for each annual reassessment plan ․”.  (emphasis in original).

Despite their bulk, the guidelines and application for the state aid program do not shed any light on whether the Town actually engaged in a bona fide townwide revaluation or update of all properties within its boundaries in 2002.   The respondent's submissions in opposition to this motion are remarkably devoid of any detail regarding the nature and extent of its purported townwide revaluation or update.   Strikingly lacking are such matters as the total number of assessed parcels within the Town as of the 2002 tax status date;  the methodology used in making any change in assessments;  whether the revaluation or update was conducted in house by Town staff, and if so, the number of hours devoted by the staff to this task;  whether the revaluation or update was conducted by some outside contractor;  and if so, what those tasks were and what the costs for such services were;  what property specific data was collected and how it was collected, analyzed and then used;  what nonspecific property data was likewise collected in this task and likewise used;  and most importantly, the results of the alleged revaluation or update, such as the number of properties whose assessments were changed upward or downward;  the net effect of the total assessed valuation within the Town;  a break down of that net upward or downward modification among commercial, residential and other property categories.

In brief, the respondent's oppositions papers simply do not offer any concrete evidence of any details of a bona fide townwide revaluation or update undertaken prior to the increase in the assessment of the shopping plaza.   That the Town's retained counsel concludes the Town conducted an annual reassessment or update for the 2002 assessment role does not make it so.   The issue is whether that conclusory assertion and any other evidence in the record are sufficient to create an issue of fact.   It is not to be ignored that the assessor does not offer in straightforward language that the she engaged or anyone else on behalf of the Town engaged in a full scale “systematic review” of the assessments of all assessed properties within the Town.   The Assessor offers that she analyzed, within the context of the state aid program, the market data and the assessed values of all commercial properties which, at least by inference, means that she did not do the same for all noncommercial properties.   The Assessor by her own testimony concedes that she did not undertake a revaluation or update of all properties within the Town of Malta prior to the change of the petitioner's property's assessment.

Not only has the respondent failed to establish that participation in this 2002 assessment year in a RPTL § 1573 program constitutes an exception within RPTL § 727(2), it has also failed to established by any evidence that it has conducted a Town wide revaluation or update of all properties within the Town prior to changing petitioner's 2002 assessment.   Unlike the proof in Akey, supra, submitted by the municipality in opposition to a motion similar to that made in this case, in which the Town Supervisor averred “that there was a Town wide reassessment of all property in this past year” and the Town Assessor averred that the subject assessments “were based upon my revaluation of all properties on the assessment role ․ on a Town wide basis and not of selective parcels”, no such averments in this case have been made.   No such clear cut, unambiguous assertions have been made in opposition to the plaintiff's motion for summary judgment.   The respondent has failed to adduce sufficient proof to create a genuine material issue of fact that it engaged in a townwide revaluation or update.

Petitioner's motion is granted and the respondent is directed to fix the 2002 assessment of petitioner's real property at $7,800.000.00, the amount of the court ordered 2001 assessment, and respondent's cross motion is denied, each without costs.


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