Opinion
DOCKET NO. A-1296-13T1
04-16-2015
BANK OF AMERICA, Plaintiff-Appellant, v. CITY OF HOBOKEN, Defendant-Respondent.
Stavitsky & Associates LLC, attorneys for appellant (Bruce J. Stavitsky, on the brief). Vincent J. LaPaglia, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from the Tax Court of New Jersey, Docket No. 004094-2008. Stavitsky & Associates LLC, attorneys for appellant (Bruce J. Stavitsky, on the brief). Vincent J. LaPaglia, attorney for respondent. PER CURIAM
Plaintiff Bank of America, the owner of certain real property in Hoboken, appeals the dismissal of complaints it filed challenging the assessment of the property for tax years 2008, 2009, 2010, and 2011, pursuant to N.J.S.A. 54:3-21. The tax judge dismissed the matter at the conclusion of the submission of plaintiff's proofs by finding that plaintiff's expert had provided a net opinion.
In appealing, plaintiff argues: deference should not be given to the tax judge's decision; its expert provided sufficient information to overcome the presumption of correctness afforded defendant's assessed valuation; and its expert's report and testimony was not a net opinion. We find no merit in these contentions.
In making the ruling that plaintiff now criticizes, Judge Mary Siobhan Brennan provided an oral opinion, followed by a supplemental written opinion. In her written decision, Judge Brennan thoroughly discussed the requirements for expert testimony, the nature of the issues in dispute, and the content of the expert's testimony. In determining that the expert had provided a net opinion, which could not overcome the presumption of correctness in the assessment, see Pantasote Co. v. City of Passaic, 100 N.J. 408, 412 (1985), the judge ascertained from the record that the expert had, among other things, failed to conduct a "market analysis . . . to establish market demand or to support a conclusion of current use as the highest and best use as improved." The judge observed that the expert opined on value by "relying upon the income approach and sales comparison approach, with the greater emphasis on the income approach." In regard to income approach, the judge observed that the expert stated "he went out into the market and looked at other bank branches, what they rented for, and then applied a market rent" to the property in question, without giving a basis "for his limitation of a market consisting solely of bank branches." The judge also observed that in drawing conclusions about other comparable properties, the expert
[w]ithout supporting data or analysis . . . made adjustments for the size of the building, the date of the lease, the location of the property, and so forth. The leases were not introduced as evidence or attached to the report. Potential gross income was determined on a square foot basis and vacancy and collection losses were chosen without any foundation. Even in the absence of a highest and best use defect, based upon the testimony of the expert, the presumption of correctness could not possibly be overcome.The judge similarly criticized the absence of data concerning the expert's sales comparison approach and the expert's unexplained failure to limiting the market in question to bank branches, and concluded that the expert's opinion did not provide a basis for overcoming the presumption of correctness.
After careful examination of the record in light of the issues posed, and in applying "a highly deferential standard of review" in such matters, Brown v. Borough of Glen Rock, 19 N.J. Tax 366, 375 (App. Div.), certif. denied, 168 N.J. 291 (2001), we conclude that the judge did not abuse her discretion in characterizing the expert's opinion and testimony as a net opinion, and we affirm substantially for the reasons set forth by Judge Brennan in her cogent and well-reasoned written decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION