Opinion
EF2019-617
10-21-2019
In the Matter of the Application of ABNER DOUBLEDAY, LLC, Petitioner, v. THE ASSESSOR AND THE BOARD OF ASSESSMENT REVIEW OF THE TOWN OF ONEONTA AND THE TOWN OF ONEONTA, Respondents. For Review, Under Article 7 of the Real Property Tax Law, of the Assessment of certain Real Property in the said Town of Oneonta, New York. Ind. No. EF2019-617
Christopher M. McDonald, Esq., WHITEMAN OSTERMAN & HANNA, Attorney for Petitioner Robert A. Panasci, Esq., YOUNG/SOMMER LLC, Attorney for Respondents Cameron B. Daniels, Esq, HOGAN, SARZYNSKI, LYNCH, DeWIND & GREGORY LLC, Attorney for Oneonta School District
Unpublished Opinion
Christopher M. McDonald, Esq., WHITEMAN OSTERMAN & HANNA, Attorney for Petitioner
Robert A. Panasci, Esq., YOUNG/SOMMER LLC, Attorney for Respondents
Cameron B. Daniels, Esq, HOGAN, SARZYNSKI, LYNCH, DeWIND & GREGORY LLC, Attorney for Oneonta School District
PRESENT: HON, BRIAN D. BURNS Acting Justice Presiding
DECISION AND ORDER
Hon. Brian D. Burns Acting Supreme Court Justice
Respondents filed a motion, pursuant to RPTL § 525(2), 706(2), seeking an order dismissing the above-entitled action on the ground that petitioner failed to exhaust administrative remedies. The motion was made returnable at a term of the court for argument. The court has considered the arguments made on the return date as well as the papers filed electronically in connection with the motion.
The court also disclosed a potential conflict and gave counsel an opportunity to request reassignment. Counsel for all parties indicated they had no objection to the matter remaining with me undersigned.
The following procedural and limited factual background does not appear to be disputed. Petitioner filed the Verified Petition on July 24, 2019 seeking reduction of the assessment on its commercial real property located at Tax Map 287.00-1-33.00 and more commonly referred to as 4158 State Highway 23 in Oneonta. The final assessed valuation was $5,821,500 for the year 2019.
The Board of Assessment Review received a Complaint on Real Property Assessment from petitioner on May 28, 2019. By letter dated May 28, 2019, the BAR, in response to the application, informed petitioner that the application had been addressed but was adjourned because of insufficient information. The BAR requested that petitioner "supply the past five (5) years of 'Income and Expenses' statements by Jun 14, 2019 to enable BAR ro make a decision on the application. The BAR apparently did not receive the requested information and by letter dated June 19, 2019, informed petitioner that the application had been dismissed because petitioner failed to produce the documents requested.
By letter dated June 27, 2019, petitioner's attorney attempted to provide the requested documents. The BAR completed and filed the assessment roll on July 1, 2019. The BAR sent a letter to petitioner dated July 10, 2019 stating that its determination remained the same as in its June 19, 2019 letter.
Respondents contend that petitioner's willful neglect to produce the requested documents until several weeks after the Complaint had been administratively dismissed and less than two business days prior to the final assessment was to be completed frustrated administrative review and precluded review of the Complaint on the merits. Respondents argues that such conduct in failing to exhaust administrative remedies precludes judicial review.
An affidavit from petitioner's counsel indicated that the failure to provide the information in a timely manner was caused by inadvertent law office failure. The court does not find that the evidence submitted by respondent in response demonstrates that petitioner's conduct was willful or evinced a desire to impede the Board's review (see, Matter of Lowe's Home Ctrs., Inc., v. Board of Assessment Review of the Town of Colonie 78 A.D.3d 1403, 1404, 911 N.Y.S.2d 259 [3rd Dept. 2010]). Therefore, the motion is denied.
Respondent currently possesses the information which was sought. If, with that information, respondent would have reached the same result, this lawsuit would have likely occurred anyway. If, however, the information was provided in a timely manner, and the assessment was in line with what petitioner was seeking, legal action wouldn't be necessary. If the town has incurred legal fees as a result of this proceeding which would have been avoided if the information was timely provided, the court will consider an application for an offset for such fees.
The court has considered all other arguments and to the extent they are not specifically addressed, they are denied.
Based on the foregoing, it is hereby
ORDERED that the motion to dismiss is denied, and a scheduling order will be issued under separate order.