Opinion
No. 247219.
10-20-2015
In the Matter of the Application of CITY OF TROY, Petitioner, v. ASSESSOR OF the TOWN OF BRUNSWICK, The Board of Assessment Review of the Town of Brunswick, and the Town of Brunswick, Respondents.
Daniel G. Vincelette, Esq., Deputy Corporation Counsel, City of Troy–Law Department, Troy, for Petitioner. Andrew W. Gilchrist, Esq., Jonathon B. Tingley, Esq., Tuczinski, Cavalier & Gilchrist, LLP, Albany, for Respondents.
Daniel G. Vincelette, Esq., Deputy Corporation Counsel, City of Troy–Law Department, Troy, for Petitioner.
Andrew W. Gilchrist, Esq., Jonathon B. Tingley, Esq., Tuczinski, Cavalier & Gilchrist, LLP, Albany, for Respondents.
RAYMOND J. ELLIOTT, III, J.
Petitioner moves for an order granting it leave to serve the Notice to Take Deposition and have certain discovery of and concerning items made subject to the Demand for Discovery and directing Respondents to answer said demands within thirty days of the date of the Order; extending the time in which Petitioner may file its Note of Issue upon the completion of disclosure; granting Petitioner leave to serve an Order granting the underlying Petition upon the failure of Respondents to comply with the Notice and Demands and granting Petitioner an adverse inference if Respondents fail to disclose the requested documents and information within their control, and costs and disbursements of this motion. Respondents have opposed the motion.
Petitioner commenced this tax certiorari proceeding seeking the review of the Respondents' tax assessment for real property which is part of Frear Park Golf Course owned and operated by Petitioner. Petitioner states that on May 1, 2015, Respondents filed its tentative assessment roll which included the subject property. Petitioner asserts that the 2013 assessed value of the subject property was $7,900.00 and in 2014, the assessed value was increased to $105,638.00 with a market value of $383,138.00. Petitioner asserts, upon information and belief, that Respondents did not conduct a municipal-wide revaluation or update for the 2014 assessment role. Petitioner further asserts, upon information and belief, that Respondents did not review or revise the assessed values of the two other golf course properties located in the Town, namely the Troy Country Club or Brunswick Greens.
Petitioner argues that the subject real property has been selectively reassessed contrary to New York State law. Petitioner asserts that additional disclosure is required in this proceeding in the form of documents and testimony from the Town Assessor regarding the 2014 assessment of the subject property and the two other golf courses located in the Town. Petitioner argues that as a matter of law, when a petitioner challenges a change in assessment where there was no municipal-wide reassessment, the assessor is required to provide an explanation of both the change in assessment on the parcel and his assessment methodology in general. In addition, any reassessment should be conducted pursuant to a comprehensive written plan to insure that any such reassessments are applied even-handedly to all similarly situated properties. Petitioner cites the case of Carroll v. Assessor of Rye, 24 Misc.3d 1208(A) (Westchester Co, Sup.Ct.2007)aff'd in part 60 AD3d 943 (2d Dept.2009), in support of his argument. Petitioner argues that upon information and belief, Respondents did not conduct a municipal-wide reassessment nor was there a comprehensive plan in place that includes the reassessment of similarly situated properties.
Petitioner's counsel states that on December 22, 2014, he served a Notice to Take Deposition of the Town Assessor on counsel for the Respondents. Petitioner's counsel states that on January 5, 2015, Respondents' counsel served its Objection to Take Deposition upon Oral Examination. Petitioner's counsel states that following the Court conference on March 27, 2015, he contacted Respondents' counsel and proposed scheduling dates for the completion of discovery. He indicates that he received correspondence dated March 30, 2015, from Respondents' counsel which stated that Respondents would not agree to an extension of the discovery dates to allow Petitioner to depose the Assessor. Petitioner's counsel states that the scheduling order indicates that Petitioner was to file the Note of Issue on or before April 1, 2015, but he cannot do so until the disclosure issues are resolved.
Petitioner's counsel requests that the Court grant him leave to serve the Notice to Produce Documents and Notice to Take Deposition provided in his papers. He asserts that the documents and testimony will prove whether the property was selectively assessed by Respondents. Petitioner's counsel states that he had made a good faith effort to resolve this issue with Respondents' counsel and that it is proper for the Court to grant the motion. He further requests that the Court order that the Petition will be granted if Respondents fail to comply with the Order. Petitioner's counsel seeks, in the alternative, that the Court impose an adverse inference on Respondents' failure to disclose the documents and information as the materials are in Respondents' possession or control and the type of evidence that Respondents would naturally be expected to produce in this proceeding.
Respondents' counsel states that the motion must be denied. Respondents' counsel first asserts that there is no basis for conducting discovery and the deposition sought as the Petition is based on inequality and overvaluation not unlawful selective reassessment. Respondents' counsel argues that the methods used by the Assessor in making the assessment is irrelevant as the issue is the fair and reasonableness of the final assessment.
Respondents' counsel asserts that the motion must be denied as Petitioner's counsel has failed to comply with the Uniform Rule 202.7, as he refused to engage in a good faith effort to resolve the discovery dispute prior to making the motion. Respondents' counsel argues that after their objection to discovery, Petitioner had to either justify the discovery sought or simplify or modify the discovery sought. Respondents' counsel asserts that the record is clear that Petitioner never engaged in any good faith effort to resolve the discovery dispute. Respondents' counsel states that Petitioner failed to respond following each of their objections to discovery and when they requested a conference to address the Petitioner's non-compliance with the scheduling order, Petitioner then expressed an interest to resolve the discovery issues. However, prior to the conference, Petitioner's counsel filed the instant motion. Respondents' counsel asserts that the scheduling order entered by the parties indicates that there would be no depositions and no demand for discovery and inspection. He states that it was agreed that the end date for disclosure was February 1, 2015, and that Petitioner would file the Note of Issue on or before April 1, 2015.Respondents' counsel further argues that the discovery and deposition sought is palpably improper and overbroad. Respondents' counsel reiterates that the Petition raised the grounds of the assessment being excessive or unequal and that the discovery sought is not relevant to these issues. Respondents' counsel states that the demands use the phrases "any," "all" and "any and all" and further demand the entire file which are palpably improper. He further argues that the Court should not "prune" the discovery sought but instead deny the motion.
Respondents' counsel states that there is no basis for extending Petitioner's time to file the Note of Issue. He asserts that Petitioner has violated every single deadline set forth in the scheduling order. Respondents' counsel further states that Petitioner has failed to provide any excuse for its noncompliance in failing to timely file the Note of Issue.
Respondents' counsel asserts that Petitioner is not entitled to discovery sanctions. Respondents' counsel states that Petitioner is not entitled to leave for discovery and deposition sought, and even if Petitioner was entitled, there is no proof of Respondents' failure to comply. He argues that Petitioner seeks to punish Respondents for not providing discovery when respondents have not consented nor has the Court granted leave to conduct discovery, so there has been no violation of CPLR Article 31.
CPLR § 408 states that "Leave of court shall be required for disclosure except for a notice under section 3123" in a special proceeding. "[D]iscovery in a RPTL article 7 proceeding is governed by CPLR 408, pursuant to which trial courts have broad discretion in directing the disclosure of material and necessary information" (Matter of Niagara Mohawk v. City of Saratoga Springs Assessor, 2 AD3d 953, 954 [3d Dept.2003] ). CPLR § 3101(a) states that "Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof ...".
"[T]he duties of tax assessors are judicial in character and their thought process are not the proper subject of an examination before trial" (Matter of Congregation Sherith Yisroel Vildenik v. Town of Ramapo, 5 Misc.3d 1027(A), [Sup.Ct. Rockland Co., 2004] ). "[T]o allow tax assessors to be deposed could bring the important process of tax assessment to a halt" (Id. ) "The discovery process sought by petitioner goes directly to the processes and formula used to arrive at the final assessment; that information is generally recognized to be beyond the scope of disclosure" (Id. ). "Further, while petitioner is not entitled to disclosure of the thought processes underlying the appraiser's valuation of any particular parcel, the requests at issue relate only to the underlying facts forming the basis for the assessment and, thus, are permissible"(Matter of Niagara Mohawk supra ).
As this is a RPTL article 7 proceeding and CPLR § 408 applies, Petitioner was required to seek leave of court to obtain disclosure which it has done through the instant motion. The Court will not consider whether Petitioner's counsel engaged in a good faith effort to resolve the discovery dispute prior to making the motion, since Petitioner had to file the motion to seek leave of the Court.
The Court has reviewed both the Notice to Take Deposition and the Demand for Discovery provided by Petitioner. The Court has broad discretion in granting or denying disclosure, although it must balance the needs of the party seeking discovery against such opposing interests as expedition and confidentiality. (see, Matter of Town of Pleasant Valley v. New York State Board of Real Property Services, 253 A.D.2d 8, 16 [2d Dept.1999] ).
The Court grants Petitioner leave to serve the Notice to Take Deposition. The Court finds that the information sought by the deposition is material and necessary in preparing for trial. The Court orders that the deposition of the Assessor is limited to only the underlying facts forming the basis for the assessment. Petitioner's counsel is not entitled to question the Assessor on the thought process underlying the appraisal of the subject parcel. The Court acknowledges that granting leave to depose an assessor is a rare occurrence, but that the allegations raised by Petitioner warrant a limited deposition as to the basis for the assessment.
The Court denies Petitioner leave to serve the Demand for Discovery. Petitioner's demands are too broad, seek access to other property files, and seeks communications between the Assessor and the Town Board. The Court finds that such disclosure will result in access to the formulae and mental processes employed by the Assessor in arriving at the assessment determinations.
Petitioner's counsel's request for leave to serve an order granting the underlying Petition upon the failure of Respondents to comply with the Notice and Demands and granting Petitioner an adverse inference if Respondents fail to disclose the requested documents and information within their control are denied. The Court has only granted Petitioner's motion for a limited purpose and an additional motion would have to be made establishing the basis for granting the Petition or granting of an adverse inference. Petitioner's request for costs and disbursements of this motion are also denied.
The Court will further order that the deadlines set in the scheduling order are extended as follows:
All discovery to be concluded by December 31, 2015 Income and Expense Statement served and filed on or before December 31, 2015 Petitioner's appraisal served and filed on or before January 15, 2016 Compliance Conference will held on Thursday, January 7, 2016, at 9:30 a.m. Note of Issue/ Certificate of Readiness served and filed on or before January 15, 2016 Respondents' appraiser to inspect the property on or before February 12, 2016 Respondents' appraisal served and filed on or before March 18, 2016
This constitutes the decision and order of the Court.
This Decision and Order is being returned to the attorney for the Petitioner. The Court will retain the original supporting documentation until conclusion of the action. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.
SO ORDERED AND ADJUDGED
Papers Considered:
1. Notice of Motion to Compel Discovery dated June 17, 2015; Affirmation in Support of Motion to Compel Discovery of Daniel G. Vincelette, Esq., dated June 17, 2015, with annexed Exhibits A–F.
2. Affirmation in Opposition to Motion to Compel Discovery of Jonathon B. Tingley, Esq., dated July 6, 2015, with annexed Exhibits A–F. Respondents' Memorandum of Law in Opposition to Motion dated July 6, 2015.