Opinion
Docket No. 018459-2013
02-28-2014
Re: Jemal et al. v. City of Long Branch
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
Mala Sundar
JUDGE
BY ELECTRONIC AND FIRST-CLASS MAIL
Joseph G. Buro, Esq.
Zipp & Tannenbaum, L.L.C.
166 Gatzmer Avenue
Jamesburg, New Jersey 08831
Jorge A. Sanchez, Esq.
DiFrancesco Bateman et al.
15 Mountain Boulevard
Warren, New Jersey 07059
Block 18, Lot 28
Dear Counsel:
This is the court's opinion with respect to defendant's motion to dismiss the above-captioned complaint as being untimely filed. Plaintiffs oppose the motion on grounds they filed the complaint within 45 days from the date their counsel received a copy of the county board judgment.
The court finds that plaintiffs have failed to file the complaint within the 45-day time limit with the Tax Court, which begins from the date of mailing of the county board judgment, not from the date the judgment is received by the taxpayer. Therefore, plaintiffs' complaint is dismissed as untimely. FACTS AND PROCEDURAL HISTORY
Plaintiffs are the owners of property designated on the tax map in defendant, City of Long Branch ("City"), as Block 18, Lot 28, commonly known as 18 Stuyvesant Place ("Subject").
Plaintiffs appealed the assessment imposed by the City on the Subject for tax year 2013 to the Monmouth County Board of Taxation ("County Board").
On June 28, 2013, the County Board issued a judgment affirming the assessment. The judgment indicated Code 6A, to signify that the dismissal of the appeal was without prejudice due to prior year(s) pending at the Tax Court.
The County Board judgment indicates "Lawyer Copy" on the left hand corner, shows the addressee as plaintiffs' counsel, Peter Zipp (who the same counsel herein), with an address of 166 Gatzmer Avenue, Jamesburg, NJ 08831" (which is the same address of that counsel in this pleading). The judgment shows the "Date Mailed" as July 18, 2013, and the line below this indicating the same to be the "date judgment entered and mailed by" the County Board.
Thereafter, plaintiffs appealed the judgment by filing this instant complaint with the Tax Court on December 4, 2013.
The City then moved for summary judgment to dismiss plaintiffs' complaint for failure to timely file with the Tax Court pursuant to N.J.S.A. 54:51A-9. In support thereof, the County Board's Tax Administrator certified that he had mailed a copy of the County Board's judgment on July 18, 2013, and that mailing was addressed to plaintiffs' counsel, Peter Zipp, Esq., at Zipp & Tannenbaum, L.L.C. with an address of 166 Gatzmer Avenue, Jamesburg, NJ 08831. He further certified that "there is no known problem with the mailing sent to" plaintiffs' counsel because the mail "was not returned as undelivered."
Plaintiffs opposed the motion. In support thereof, they included a certification of (heir counsel, Peter Zipp, Esq. Counsel certified that the County Board's judgment of June 28, 2013 was mailed on July 7, 2013, but was received by his office only on October 21, 2013 by telefax of that date. The telefaxed transmittal consisted of a "fax transmission cover memo" of the County Board, the recipient of the fax on this cover sheet being identified as "Regina" and the sender being identified as "Tax Board." It also included a copy of the County Board's judgment described above. ANALYSIS
This date is obviously incorrect since the mailing date on the judgment reads July 18, 2013.
N.J.S.A. 54:51A-9(a) provides that complaints seeking review of an adjudication or judgment of the county board of taxation shall be filed with the Tax Court within 45 days of the service of the judgment.
Pursuant to R. 8:4-1(a)(4), service of the judgment of the County Board, when by mail, is complete on the date the judgment is mailed. However, this is "subject to the provisions of R. 1:3-3." Rule 1:3-3 states that "when service of a notice or paper is made by ordinary mail, and a rule or court order allows the party served a period of time after the service thereof within which to take some action, 3 days shall be added to the period."
Plaintiffs argue service of the judgment means their receipt (or their counsel's receipt) of the same. Since here, their counsel received the judgment only on October 21, 2013, their complaint was timely filed on December 4, 2013 since 45 days from October 21, 2013 is December 5, 2013.
The City maintains that under the presumption of mailing rule, and R. 8:4-1(a)(2), "plaintiff was required to file a complaint . . . within . . . 45 days of the receipt of the judgment." Since that "date of receipt" was "Monday, September 2, 2013," the City claims that the complaint is untimely.
The July 18, 2013 mailing date of the County Board judgment, phis three days, provides a filing deadline of September 1, 2013. That day being a Sunday, the deadline would be Monday, September 2, 2013.
The plain language of the statute indicates that the controlling date is the "service" of the judgment, not its receipt. This is contrast with the term "filing" of the complaint with the Tax Court. A filing requires actual receipt by the court of the paper to be filed. R. 1:5-6(b)(7); R. 8:3-1(a). See also Pressler, Current New Jersey Court Rules, comment 2 on R. 1:5-6 ("It is clear that unlike service, which is complete upon mailing, filing can only be effected by the receipt of the filed paper by the designated office.").
Plaintiffs' argument appears to indicate that since their counsel received the County Board judgment only on October 21, 2013, and that too by telefax, they never received the County Board judgment by mail. Therefore, they have rebutted the mailing presumption and the attendant presumption of receipt.
"Service by [certified or regular] mail, when authorized, is deemed complete when the notice is deposited in the post office, properly addressed and with the proper amount of postage." Tolentino v. Township of Oxford, 4 N.J. Tax 173, 180 (Tax 1982). In addition, there is a "presumption that mailed material, correctly addressed, stamped and mailed, was received by the party to whom it was addressed." Id. at 181. See also Lamantia v. Township of Howell, 12 N.J. Tax 347, 353 (Tax 1992) ("Proof of the correct addressing and due posting of a letter raise[s] a presumption that it was received by the addressee"). This "rule is engendered by the probability that officers and employees of the postal department will do their duty, and by the regularity and certainty with which, according to common experience, the mail is delivered." Szczesny v. Vasquez, 71 N.J. Super. 347, 354 (App. Div. 1962).
Being a presumption, the same is "rebuttable and it may be overcome by evidence that the [mailed item] was never in fact received." Ibid. The party asserting fact of mailing, must initially provide proofs "of sufficient strength to give rise to a presumption of mailing," Bruce v. James P. Maclean Firm, 238 N.J. Super. 501, 505 (Law Div. 1989). Such proofs can include "evidence of habit, routine practice, or office custom." SSI Med. Servs. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J. 614, 622-23 (1996).
Neither N.J.S.A. 54:3-26 nor the regulations, N.J.A.C. 18:12A-1.12(a)(3)(iii), both of which require the county Board to "transmit a written memorandum of its judgments" defines the term "transmit." See also Tolentino, supra, 4 N.J. Tax at 178 ("The Legislature did not set forth any specific direction as to the method of transmitting the memorandum . . . . "). In the absence of any guidance from the statute, regulations or court rules, on "any specific method of how to serve a memorandum of a county board judgment upon a party, any reasonable method of service that will afford notice to a party may be utilized." Id. at 179.
Thus, "[a]bsent a legislative enactment or a court rule contrary thereto, a required notice may be effectively given if properly mailed." Ibid. Thus, because R. 8:4-2(b), the court rule governing calculation of time periods for filing, "implicitly authorized . . . service by mail" and further since "there is no requirement that service by mail be registered or certified, forwarding judgments to the parties by regular mail is permissible." Tolentino, supra, 4 N.J. Tax at 179. See also 1:5-2 ("service upon an attorney of papers referred to in R. 1:5-1 [which includes judgments] shall be made by mailing a copy to the attorney at his or her office by ordinary mail" or personal service or in the "same manner" as service to a party if the attorney's office is closed or the attorney has no office).
R. 1:5-1 applies to county board proceedings. See Estate of Frankei v. Borough of Hillsdale, 10 N.J. Tax 2 13, 215-216 (Tax 1988) (no proper service of the county board judgment because it was not sent to plaintiff's counsel of record as required by R. 1:5-1, which court rule applied to county board proceedings, therefore, the municipality's motion to dismiss the complaint was denied).
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Here, the County Board's Tax Administrator certified that he mailed out a copy of the County Board judgment to plaintiffs' counsel. There is no suggestion that the mailing address was incorrect or that the counsel indicated on the judgment was not counsel in the County Board proceeding. The mail was not returned undelivered.
On the other hand, plaintiffs' proffer of the telefax transmittal cover sheet does not present credible evidence to overcome the County Board's presumption of mailing and, thus, of its receipt. The fax transmittal cover sheet indicates the recipient asRegina." one "There is no mention of any reference to the attorney of record or his office, as in listed on the County Board judgment. Plaintiffs do not contend that "Regina" was their counsel of record.
Further, in view of the Tax Administrator's certification, and the above precedent, ihc court is not persuaded that the County Board would serve its judgments by fax in violation of R. 1:5-2 which applies to the county boards through R. 1:51. Indeed, the regulations caution that a county board "should endeavor to send out judgments at the time decided or as soon thereafter as practical, and not hold them until the time for hearing and determining appeals has expired pursuant to N.J.S.A. 54:3-26, as extended by N.J.S.A. 54:3-26.1. Earlier disposition will assist the Tax Court in the processing of its caseload." N.J.A.C. 18:12A-1.12(b)(6). This provision was inserted to "make clear that county boards of taxation should send out judgments before the time for hearing and determining appeals has expired." 35 N.J.R. 4850(a) (Oct. 20, 2003). In light of this obligation, the court is not persuaded that here, the Tax Administrator never mailed the judgment, and then, for some unknown reason, his office faxed the same to "Regina" at plaintiffs' counsel's fax number. Nowhere is there an allegation or even a suggestion by plaintiffs' counsel that he (or his firm) has customarily or often been "served" with county board judgments by a telefax from the County Board. Without more, plaintiffs are requesting the court to leap to a conclusion unfounded by the evidence before it.
Based on the record, the court finds that the City has established the presumption of mailing and receipt of the County Board judgment on July 18, 2013. Plaintiffs' proof of the telefax transmittal cover sheet does not credibly or persuasively overcome the presumption of receipt of the mailed County Board judgment.
The court thus finds that summary judgment in favor of the City is appropriate as plaintiffs have not come forward with evidence that creates a genuine issue as to the mailing date of the judgment. See R. 4:46-2(c) ("An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact"). See also Brill v. Guardian Life Ins. Co. of Am., 142 NJ. 520, 529 (1995) (non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute).
Plaintiffs' complaint was filed untimely. This deprives this court of subject-matter jurisdiction to decide the merits of the complaint since filing deadlines are considered statutes of limitation in the Tax Court and are strictly enforced. Mayfair Holding Corp. v. Township of North Bergen, 4 N.J. Tax 41, 41 (Tax 1982) (granting defendant's motion to dismiss plaintiff's appeal for lack of jurisdiction because it was filed one day after the last day prescribed by statute for filing the appeal.); Sun Life Assurance Co. of Canada v. City of Orange, 2 N.J. Tax 25, 28 (Tax 1980) (denying plaintiff's motion to relax the statutory filing deadlines even with the adversary's consent.). CONCLUSION
For the aforementioned reasons, the Township's motion for summary judgment is granted. Plaintiffs' 2013 complaint is dismissed with prejudice. An Order and Judgment in accordance with this opinion will be issued.
Very truly yours,
Mala Sundar, J.T.C.