Opinion
3076-05.
March 10, 2008.
The following papers read on this motion:Notice of Motion ....................................... Affirmation in Opposition ......................... Reply Affirmation .....................................
This is a tax certiorari proceeding tried before this Court on January 15, January 16 and January 23, 2008. By a prior order, this Court (July 24, 2007) consolidated separate tax certiorari proceedings for two properties.
BWM High Dry Inc. (hereinafter BWM) and Main Street Marine Inc. (hereinafter Main Street Marine) are two properties that are used, in their totality, for boat storage.
Both parcels are owned by Dante Grover, under different corporate names, and are located adjacent to each other on Main Street and Ray Street in Freeport, NY.
During trial, an in limine motion was made by petitioner's counsel to strike the respondents' appraisal, and a cross-motion was made by respondents' counsel to strike the petitioner's appraisal.
A central issue herein is the legal admissibility of the public report by the New York State Department of Environmental Conservation, which is contained within the Petitioner's Appraisal, and which the Petitioner's expert relied upon when formulating and finalizing his Report.
The record of the New York State Department of Environmental Conservation ("NYSDEC") is composed of two parts: "Proposed Remedial Action Plan Metal Etching Co., Inc.", dated February, 2007; and "Record of Decision Metal Etching Co., Inc. Site Freeport, New York Site Number 130110", dated March 2007.
CPLR 4540 provides, in pertinent part, as follows:
"(a) Copies permitted. An official publication, or a copy attested as correct by an officer or a deputy of an officer having legal custody of an official record of the United States or of any state, territory or jurisdiction of the United States, or of any of its courts, legislature, offices, public bodies or boards is prima facie evidence of such record.
(b) Certificate of office of the state. Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed".
The certification that accompanies the NYSDEC Report reads:
"I, Michael J. Lesser, as Assistant (NAME) (TITLE) Counsel, NYSDEC am the custodian of the requested records and have been charged with the duty to maintain said records in the regular course of business. I hereby certify in accordance with the provisions of CPLR Section 4540, that the attached records are timely made, true, complete and authentic copies of the original records of the:
1. "Proposed Remedial Action Plan Metal Etching Co., Inc.", dated February 2007;
2. "Record of Decision Metal Etching Co., Inc. Site Freeport, New York Site Number 130110", dated March 2007; as held by the New York State Department of Environmental Conservation and find them to be true, complete and accurate. Said records were made and maintained in the regular course of business by said Department and it is in the regular course of business to keep said records".
That certification is signed and sworn to before a notary and the NYSDEC seal is affixed.
CPLR 4518 provides, in pertinent part, that
"Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it".
An examination of the aforementioned certification reveals that it complies, in every respect, with CPLR Rules 4518 and 4540. Such compliance, therefore, makes such document admissible in evidence as authenticated and certified. (see, Farrell, Prince, Richardson on Evidence, 11th Edition, § 9-204, 9-201, 9-202). Accordingly, the NYSDEC is admissible as evidence of value as submitted by petitioner's expert.
The petitioner argues that the respondents were on notice that the central issue herein, ground and groundwater contamination, was not considered in the respondents' appraisal and only briefly mentioned. Without that consideration, petitioner's counsel contends, the respondents' appraisal does not meet the requirements of 22 NYCRR 202.59, in that such appraisal is not based on the facts extant relative to the property, i.e., the undisputed findings of the DEC that the property is contaminated, and that the property value is necessarily affected. Petitioner therefore urges that this Court should strike the respondents appraisal. The respondents' attorney urges this Court to strike the petitioners' appraisal on the grounds that the comparables used in that report were nothing more than storage yards and not marinas. He further argues these comparables were so different from the subject property that they are invalid and makes the appraisal non-compliant with the court rules and inadmissible.
Both motions are denied . The lack of an analysis with the DEC report by the respondents' appraisal affects the weight that this Court affords it, not the admissibility of the report. With respect to the County's application to strike the petitioner's appraisal, the testimony by the petitioner's appraisal expert is significant and enlightening, in that the function of the petitioner's business is that of thestorage of boats, notwithstanding this Court's use of the term "marina" in the order of July 24, 2007; such terminology was utilized by the parties in the motion.
The respondents' expert has used a comparable facility that is described as a "full service marina [with] amenities [that] include a fuel dock, boat repair facility, ship store and bathrooms" (Aarons report, p35). Another comparable has "[a]menities [which] include a boat repair, bathrooms and a laundry" (Aarons report, p36). Another comparable has ". . amenities that include a fuel dock, boat repair, ship store, bathrooms, cable TV/phone and an on site restaurant (Aarons report, p37). A further comparable ". . .facility has amenities that include a fuel dock and restaurants (Aarons report, p38). A fifth comparable (Aarons report, p39) facility [has] . . . amenities that include a fuel dock, boat repair, swimming pool, ship store, bathrooms and a picnic area".
The credible testimony of the petitioner was that the boat slips of the subject property were only incidental to the function of the property, which is that of a storage facility, but the respondents' expert's utilization of the aforestated comparables is not rationalized by any adjustment, and those comparables are so vastly different and disparate from the subject property as to provide this Court with little to no guidance to assess its value.
The analyses by both experts and their respective reports are neither so defective nor so lacking in evidentiary competence that requires this Court to rule that they are inadmissible. It is the weight of those reports and testimony that is addressed by the Court.
At the outset of the trial of a tax certiorari proceeding, the respondent's assessment is given the presumption of validity. The petitioner must show that the property has been overvalued to overcome the presumption. The petitioner needs merely to provide:
". . .credible and competent evidence, usually in the form of a competent appraisal, that a valid dispute exists concerning the property's valuation. The ultimate strength, credibility or persuasiveness of petitioner's arguments are not germane during this threshold inquiry, nor is the weight to be given to either party's evidence relevant consideration at this juncture" FMC Corp. v Unmack , 92 NY2d 179, 180 (1998) aff'd on remand, 254 AD2d 683 (4th Dept., 1967).
The issue before the Court, after petitioner presents its appraisal on direct and cross examination, is whether petitioner has offered sufficient evidence to rebut the presumption of validity of the assessment. The burden has been met when petitioner has offered substantial evidence that the property is overvalued. ( FMC Corp. at 187 supra ). Substantial evidence is less than preponderance of evidence ". . .and simply 'means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'. ( 300 Gramatan Avenue Assocs. v State Division of Human Rights , 45 NY2d 176, 180)". ( Carriage House Motor Inn, Inc. v City of Watertown , 136 AD2d 895, 897, 4 th Dept., 1988). The Court should determine whether petitioner has offered documents and testimony based on "sound theory and objective data". ( FMC Corp. at 7 supra ).
Herein, the Court must assess the credibility and completeness of the testimony adduced at trial. The petitioner's expert's testimony and report demonstrates a more exacting and credible approach and analysis which yields a comprehensive, complete and coherent result that requires a reduction of assessment and taxes for the years at issue. In contrast, the respondents' expert's report, analysis and testimony was lacking in its completeness, in that it did not factor in what is the most important single issue affecting the valuation and assessment of the subject property, the undisputed contamination of the land itself. Nor did the respondents' expert's use of his chosen comparables yield any rational comparison of valuation.
The petitioner's expert urges this Court to accept his conclusion that the subject property warrants a discount of 80% due to the well documented contamination. That admissible evidence has been presented and accepted by this Court without any contradictory evidence or testimony. It is not for this Court to conclude that the 80% discount is factual; rather that it is reasonable, and considering all the attendant facts and circumstances and without any contrary evidence, the Court concurs with the petitioner's conclusion.
The Court finds that the petitioner has demonstrated, by a preponderance of the credible evidence, that the subject property is overvalued, and that the proper value is as follows:
DATE VALUE RATIO ASSESSMENT ASSESSMENT REDUCTION
TAX ESTIMATED INDICATED ACTUAL INDICATED STATUS TOTAL STIPULATED TOTAL TOTAL TOTAL 1/1/02 $134,800 .06000 $8,088 $30,790 $22,702 1/1/03 $304,000 .00935 $2,842 $ 9,728 $ 6,886 1/1/03 $304,000 .00935 $2,842 $ 9,679 $ 6,837 1/1/04 $332,000 .00935 $3,104 $ 9,929 $ 6,825 1/1/05 $358,000 .00935 $3,347 $11,031 $ 7,684 1/1/06 $386,000 .00965 $3,725 $12,892 $ 9,167This determination constitutes the decision of the Court in compliance with Real Property Tax Law § 720(2).
Settle judgment on 10 days notice.