Redhead Properties, LLC
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
REDHEAD PROPERTIES, L.L.C.,
By Huff Wilkes, L.L.P., Agent
RECEIVED
MAY 1 6 2006
TOWN CLERK
In the Matter of the Application of
Petitioner,
NOTICE OF ENTRY AND
DEMAND FOR PAYMENT
- against -
THE TOWN OF WAPPINGER, its ASSESSOR, and
THE BOARD OF ASSESSMENT REVIEW,
Index No.: 19569-05
(Westchester County Clerk)
(Dickerson, J.)
Respondents,
For a Review Under Article 7 of the RPTL .
SIR S :
PLEASE TAKE NOTICE that the within is a true copy of a Decision and Order in the
above-entitled matter dated May 10, 2006, and filed and entered in the office of the County Clerk
of Westchester County on May 10, 2006; and
PLEASE TAKE FURTHER NOTICE that the undersigned hereby demands that the
assessments directed to be reduced and the refunds directed to be audited, allowed, and paid to
the petitioner in the above-entitled proceeding be allowed and paid with interest according to the
terms of said Decision and Order.
Dated: May 12, 2006
1YYl
HUFF WILKES, LL
Attorneys for Petitio rs
200 White Plains Road
Suite 510
Tarrytown, New York 10591
(914) 631-1500
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
_______________________________________X
REDHEAD PROPERTIES, L.L.C.,
By Huff Wilkes, L.L.P., Agent,
FILED
AND ENTERED
ON
MAY 10, 2006
WESTCHESTER
COUNTY CLERK
Petitioner,
Index No. 05-19569
(Westchester County Clerk)
-against-
DECISION & ORDER
THE TOWN OF WAPPINGER, its ASSESSOR
and THE BOARD OF ASSESSMENT REVIEW,
Respondents,
For a Judgment Under Article 78 of the
CPLR and other Relief
_________________________________________X
DICKERSON, J.
RPTL ~ 727(1) MORATORIUM: CONSENT JUDGMENT ENFORCED
In this matter the Petitioner, Redhead Properties, L.L.C.,
owners of the subject seventy-six ( 76 ) tax lots, seeks to enforce
pursuant to CPLR Article 78 and RPTL 8 727(1) a Consent Judgment1
"
the Consent Judgment
"
entered into between Sherwood
Development I, LLC and Sherwood Development II, LLC [ "Sherwood" ],
the former owners of the subject tax lots, and the Respondents, The
Town of Wappinger, its Assessor and Board of Assessment Review
, i'
[ \\ BAR \\ ], on March 16, 20042.
The Consent Judgment expressly provided \\ that the provisions
of section 727 of Real Property Tax Law shall apply to the
assessments appearlng in Exhibit A for at least the three
assessment rolls succeeding the 2003 assessment roll \\3. However,
fourteen months after agreeing to the Consent Judgment the
Respondents proposed to [ and eventually did] more than double the
assessments on all of the subject 76 tax lots for the tax year
20054. In response the Petitioner challenged the 2005 assessments
before the BAR, filed an R.P.T.L. Article 7 Petition for Review of
Tax Assessment5 and commenced the instant Article 78 proceeding.
The Respondents later explained their actions [ within the context
of this proceeding ] as being justified by a misrepresentation made
by Petitioner's \\ transactional attorney \\6 which Respondents
relied upon In entering into the Consent Judgment and two
exceptions in RPTL 8 727 (2) ( i.e., 8 727 (2) (a)
\\ There is a
revaluation or update of all real property on the assessment
roll
\\
) 7 and 8 727 (2) (I)
\\ The use or classification of the
property has changed \\ )B.
Stated, simply, and after a careful review of the Petition and
papers submitted in support of and in opposition thereto9 and the
excellent presentations of counsel made during oral argument, most
especially, the forthright admissions of Respondents' at torneylO,
held on May 5, 2006, this Court grants the relief sought, to the
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extent of " directing and compelling Respondents to correct the
final assessment roll for the 2005 assessment year by adjusting the
assessments in accordance with the terms of the Consent Judgment...
directing that refunds for the overpayment of any ( 2005 ) real
property taxes levied and paid... shall be made together wi th
statutory interest " and awarding an " additional allowance " of
$100.00 for each of the subject 76 tax lots.
FACTUAL BACKGROUND
The Consent Judqrnent
The Consent Judgment which forms the basis of this Article 78
proceeding was entered into on March 16, 2004 by Sherwood and the
Respondents to resolve a dispute over the 2003 assessments imposed
on the subject tax lots. The dispute lead to the entry of a Default
Judgment issued by Justice Rosato of this Courtll. Evidently, as a
face savlng measure the Respondents agreed to the Consent
Judgment12. " The Consent Judgment resulted in the reduction of the
aggregate assessments for 2002 and 2003 assessment years from
$3,055,100 to $1,680,00 which was to remain fixed, pursuant to RPTL
~ 727,
for the 2004, 2005 and 2006 assessment rolls
" 13
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The Purchase
The Petitioner, Redhead Properties LLC, purchased the subject
tax lots from Sherwood on March 14, 200514.
The Notice Of Chanqe Of Assessment
On May 6, 2005 the Respondent Assessor mailed to Petitioner a
" Notice of Change of Assessment "15 for each of the subject tax
lots the effect of which " was to reset each assessment for each of
the lots to the pre-Consent Judgment values "16. This Notice was
challenged before the BAR and resulted in the filing of an RPTL
Article 7 peti tiod7 .
Article 78 Petition To Enforce A Consent Judqment
The Petitioner timely18 filed the instant Article 78 Petition
seeking to enforce the Consent Judgment and vacate the 2005
assessment pursuant to RPTL Si 727 (1). Petitioner may seek to
enforce the Consent Judgment by way of a CPLR Article 78 Petition
[ See e.g., EMP of Cadillac, LLP v. Assessor of Villaqe of Sprinq
Valley, 15 A.D. 3d 336, 789 N.Y.S. 2d 522 ( 2d Dept. 2005 ) ( " The
Supreme Court should have determined that the plaintiff should have
commenced a proceeding pursuant to CPLR Article 78 in the nature of
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mandamusr since the defendant refused to comply with the terms of
the consent judgment... We remedy such procedural infirmity by
converting this action.. .to a proceeding pursuant to CPLR article
78.. .to compel the defendant to comply with the consent
judgment" )] or an RPTL Article 7 Petition [ See e.g. r Washinqton
Commons Associates v. Board of Assessors of the City of AlbanYr 4
Misc. 3d 1027r 798 N.Y.S. 2d 349 ( Albany Sup. 2004 ) ( RPTL Article
7i summary judgment granted to petitioner) i Matter of 2 Perlman
Drive LLC v. Board of Assessors of Villaqe of Sporinq ValleYr 9
Misc. 3d 382r 800 N.Y.S. 2d 816
Article 7 )].
Rockland Sup. 2005 ) ( RPTL
No Selective Reassessment
Notwithstanding petitionerrs assertions19 to the contrary the
issues raised herein do not involve the prohibited policy of
selective reassessment20 See e.g'r Matter of Charles Kruqman v.
Board of Assessors of the Village of Atlantic Beachr 141 A.D. 2d
175r 184r 533 N.Y.S. 2d 495 ( 2d Dept. 1988 ) ( " The respondentsr
practice of selective reassessment of only those properties in the
village which were sold during the prior year contravenes statutory
and constitutional mandates.
In order to achieve uniformity and
ensure that each property owner is paying an equitable share of the
total tax burden the assessors r at a minimumr were required to
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review all property on the tax rolls In order to assess the
properties at a uniform percentage of their market value. The
respondents' disparate treatment of new property owners on the one
hand and long term property owners on the other has the effect of
permitting property owners who have been longstanding recipients of
public amenities to bear the least amount of their cost... This
approach lacks any rational basis in law and results in invidious
discrimination between owners of similarly situated property U )].
The RPTL ~ 727(2) Exceptions
The assessments agreed to In the Consent Judgment may be
changed within the three year prohibition of RPTL ~ 727 (1) if
Respondents can demonstrate the application of one or more of the
exceptions set forth in RPTL ~ 727(2) [See e.g., Matter of Malta
Town Centre v. Town of Malta Board of Assessment Review, 3 N.Y. 3d
563,822 N.Y.S. 2d 331,789 N.Y.S. 2d 80 ( 2004 ) ( RPTL ~ 727(2)
(a) ( revaluation) ) i Matter of Akev v. Town of Plattsburqh, 300
1".. D. 2 d 871, 754 N. Y . S. 2 d 378 ( 3 d Dept. 2002 ) ( RPTL 3 727 (2) (a)
( revaluation)) i Matter of Viacom Corp. v. Board of Assessors of
the Town of Horseheads, 295 A.D. 2d 791, 744 N.Y.S. 2d 539 3d
Dept. 2002 ) ( RPTL 3 727 (2) (a) ( revaluation) ) i Owens Corninq v.
Board of Assessors of Town of Bethlehem, 279 A.D. 2d 118, 718
N.Y.S. 2d 715 (3d Dept. 2001) (RPTL ~ 727(2) (a) (revaluation) )i
- 6 -
Washinqton Commons Associates v. Board of Assessors of the City of
Albany, supra ( RPTL ~ 727 (2) (g) ( change In occupancy rate of 25%
or greater)) i Matter of 2 Perlman Drive LLC v. Board of Assessors
of Villaqe of Sprinq Valley, supra ( RPTL ~ 727 (2) (g) ( change In
occupancy rate ), (I) ( change in use or classification )] .
The Respondents' position
The Respondents assert in the unsworn affidavi t of their
attorney that there are three reasons21 which justify their
violation of the Consent Judgment's prohibition against increasing
the assessments on the subject tax lots for the tax year 2005.
The Misrepresentation
Respondents assert that they entered into the Consent Judgment
with Sherwood, the former owner of the subject tax lots and not a
party to this proceeding, because of a misrepresentation to the
effect " that should the units be sold individually in the future,
such would constitute a change warranting an increase In
assessment22". Respondents claim that three sales were made In
August and October of 200523, long after the taxable status date of
March 1, 2005, after the subj ect tax lot s were sold to the
Petitioner on March 14, 2005 and after the Petitioner received the
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Notice of Change of Assessment on May 6, 2005. As admitted by
counsel at oral argument24 these sales have nothing to do with the
2005 assessment challenged herein. In any event, no affidavit of
any of the Respondents has been submitted setting forth the alleged
misrepresentation and their reliance thereon in entering into the
Consent Judgment. All that is presented on this issue lS the
statement of counsel in an unsworn affidavit having no probative
value25. Furthermore, if in fact there was such a misrepresentation
[ disputed by Petitioner's counse126 ] and Respondents were serious
about their claims of being deceived then they should have moved
against the prior owner27, Sherwood, to vacate the Consent Judgment
on the grounds of fraud which they have not done. It is clear that
there is not a scintilla of merit in the Respondents' counsel's
unsworn claim that Respondents were deceived into entering into the
Consent Judgment and, therefore, are justified in violating the
Consent Judgment by raising the assessments on the subject tax lots
in 2005.
RPTL !ii 727 (2) (a)
Revaluation
Respondents assert that the " Town of Wappinger has undertaken
a town wide revaluation. The cover page of the contract for such
endeavor is attached "28. Not only does Petitioner dispute that such
a revaluation took place in 2005, if at al129, but at oral argument
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Respondents' counsel admitted that no revaluation took place during
the 2005 tax year and that RPTL 8 727(2) (a) does not apply herein.
In addition, the assertion of a revaluation was not set forth in
any affidavit by Respondents but only in the unsworn affidavit of
their attorney30.
RPTL ~ 727(a) (I): Chanqe In Use
Respondents assert that " assessment may be changed where the
, use or classification of the property has changed '. Such change
or classification has irrefutably taken place "31. Respondents claim
that the sale of three lots in August and October of 2005 are
indicative of a change of use from " rental units " to lots for
sale. Respondents cite no authority to support their position that
such a " change" is covered by RPTL 8 727 (a) (I). As with other
factual assertions discussed above these statements regarding a
change in use have no probative value, are not applicable to the
2005 assessment challenged herein as discussed by petitioner32 and
admitted to at oral argument by Respondents' counse133.
DISCUSSION
The Petitioner has met its burden of demonstrating the
existence of an enforceable Consent Judgment regarding the subject
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tax lots which expressly states " that the provisions of Section
727 of the Real Property Tax Law shall apply to the assessments
appearing in Exhibit A for at least the three assessment rolls
succeeding the 2003 assessment roll" and that Respondents violated
the Consent Judgment and RPTL ~ 727(1) by more than doubling the
2005 tax assessments on all 76 of the subject tax lots [ See e.g.,
Washinqton Commons Associates v. Board of Assessors of the City of
Albany, supra "In sum, the Court finds that WCA made a prima
facie case entitling it to summary judgment for demonstrating that
the 2002 reassessment was prohibited by the August 11, 2000 Order
and RPTL ~ 727 ( 1 ) " )].
The burden of proof then shifted to the Respondents to " show
that the
2005
reassessment was authorized by an exception
provided in RPTL ~ 727(2)
"
[ Washinqton Commons Associates v.
Board of Assessors of the City of Albany, supra]. The Respondents
have failed to meet their burden by demonstrating that the 2005
reassessments of the subject tax lots were, in any way, justified
by RPTL ~ 727 (2) (a) ( revaluation) or RPTL ~ 727 (2) (I)
change in
use ). Further, Respondents' counsel's unsworn assertion that
Respondents were deceived in entering into the Consent Judgment
with a party not before this Court is irresponsible, at best. It lS
clear that Respondents are not serious about this charge of
misrepresentation since they have not moved to vacate the Consent
Judgment on the grounds of fraud.
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RPTL ~ 722(2): An Additional Allowance
The Petitioner seeks the award of \\ an additional allowance \\
of
\\
$500.00
for each of the 76 tax lots
illegally assessed \\
pursuant to RPTL ~ 722(2) ( \\ Where the court finds as a fact that
(a) the assessment of the property was increased without adequate
cause after a final order.. .the court shall award to the petitioner
an additional allowance, not exceeding the amounts hereinafter
specified. . .one year, five hundred dollars \\ ). Such an award is
appropriate when an assessment has been
increased
\\
without
adequate cause \\ [ See e. g., Matter of W. T. Grant Company v. Sroqi,
52 N.Y. 2d 496, 438 N.Y.S. 2d 761, 420 N.E. 2d 953 ( 1981 )
\\
Similarly,
the record supports the
findings that the
assessments were ' increased without adequate cause ' subsequent to
court orders of reduction \\ ) ; Matter of McCrorv v. Sroqi, 101 A.D.
2d 696, 476 N.Y.S. 2d 37 ( 4th Dept. 1984 ) ( \\ No credible evidence
was offered to dispute petitioner's allegations and proof that the
assessment was increased ' without adequate cause ' \\ ); Rice v.
Sroqi, 70 A.D. 2d 764, 417 N.Y.S. 2d 537 ( 4th Dept. 1979) ( \\ we
do not disturb the trial court's award of an additional allowance
\\ )]. In addition, it is appropriate to consider awarding \\ an
additional allowance \\ for each of the subject 76 tax lots [ See
e.g., Michael J. Adrian Corp. v. Sexton, 251 A.D. 181, 295 N.Y.S.
542 ( 1st Dept. 1937 ) ( it is proper to consider \\ the assessments
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on thirty-seven separate and distinct parcels of property " within
the context of a single petition )].
It is clear that Respondents violated the Consent Judgment and
RPTL ~ 727(1) ln reassessing the subject 76 tax lots in 2005 and
that they did so " without adequate cause "34. The Court awards an
" additional allowance" of $100.00 for each of the 76 overassesed
tax lots.
Conclusion
Based upon the foregoing the relief sought by the Petitioner
is granted to the extent of (1) directing Respondents to correct
the final assessment roll for the 2005 assessment year by rolling
back the assessments ln accordance with the terms of the Consent
Judgment dated March 16, 2004, (2) directing that refunds for the
overpaYffient of any real property taxes levied and paid for the 2005
assessment in excess of those set forth in the Consent Judgment
shall be made together with statutory interest and (3) awarding an
additional allowance of $100.00 for each of the subject 76 tax lots
pursuant to RPTL ~ 722(2).
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The foregoing constitutes the Decision and Order of this
Court.
Dated: White Plains, N.Y.
May 10, 2006
.~'_'ft......
. DICKERSON
SUPREME COURT
TO: David Wilkes, Esq.
Huff Wilkes, LLP
Attorneys for Petitioner
200 White Plains Road
Suite 510
Tarrytown, N.Y. 10591
Emanuel F. Saris, Esq.
Vergilis, Stenger, Roberts & Partners, LLP
Attorneys for Respondents
1136 Route 9
Wappingers Falls, N.Y. 12590
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ENDNOTES
I.Verified Petition dated October 31, 2005 [ " Pet. " ] at Ex. B.
2.Pet. at Exs. A, B.
3. Pet. at Ex. B, p. 3.
4. Pet. at Ex. D.
5. Pet. at Ex. E.
6.Affidavit in Opposition of Emanuel F. Saris [ unsworn
[ " Saris Unsworn Aff. " ] at para. 6 and Ex. A.
7. Saris Unsworn Aff. at para. 8.
8. Saris Unsworn Aff. at para. 9 and Ex. C.
9. The only papers submitted by Respondents in opposition to the
relief sought by Petitioner is the unsworn affidavit of their
attorney, Emanuel F. Saris.
IO.At oral argument Respondents' attorney, Mr. Saris, graciously
admitted that Respondents have no credible basis for opposing the
relief sought by the Petitioners [ Transcript of Oral Argument
[ " Trans. " ] at pp. 8-15 ].
First, the exception in RPTL s 727(2) (I) does not apply:
The Court: What relevance are these sales to the 2005
assessment?
Mr. Saris: For these particular units, I would have to
say none.
The Court: Thank you. So there is no exception under
( 727 ) (2) (I), is there?
Mr. Saris: With respect to the year at issue as
represented by counsel, the Court is absolutely correct.
The Court: That's what we're here for, 2005.
Mr. Saris. That's correct, your Honor. The Court lS
absolutely correct.
The Court: So (2) (I) is out; is that correct?
Mr. Saris: I believe so, your Honor.
Second, the exception in RPTL s 727 (2) (a) does not apply:
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(2) (a) I do you have any proof of any reval?
That we/re in the midst of a reval?
Yesl for 2005. That/s the year.
" The Court:
Mr. Saris:
The Court:
The Court: What proof do you have that the reval
exception applies in this case dealing with 2005?
Mr. Saris: Other than the process of a reval or that
was it completed for 2005; is that what the Court is asking.
The Court: Yes.
Mr. Saris: It wasn/t complete. It won/t be completed
until next year.
The Court: So it doesn/t applYI is that correct?
Mr. Saris: Yesl that/s correct.
The Court: So you have two exceptions and just
admitted that neither one apply.
Thirdl the representation set forth in para. 6 of the Saris
Unsworn Aff. ( " it was agreed and understood that should the
units be sold individually in the futurel such would constitute a
change warranting an increase in assessment " ) I even if true
( and no probative evidence in affidavit form has been submitted
by a Town official attesting to the making of and reliance upon
such a representation in entering into the Consent Judgment ) I is
irrelevant to the 2005 assessment.
" Mr. Saris: WeIll 11m gOlng to have to rely on my
understanding...1 had not had the opportunity to specifically
discuss the case with him.. .The representation was made.. .to Mr.
Logan by Mr. Wilke...
The Court: Does that appear in the consent judgment?
Mr. Saris: It does notl your Honor. But the point is
that everybody knew that.
The Court: Everybody?
The Court: Is there anything is writing?
Mr. Saris: NOI your Honor. That/s right. There
isn't.
The Court: So tell me why we should not grant the
request of the Petitioner?
Mr. Saris: For the initial argument that I made
which was the Town relied upon the representations made to enter
into that consent judgment I and there/s documentary evidence
supporting that representation made to the prior assessor.. .Tom
Logan.
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The Court: Again, the sales took place after the
relevant dates which you've just admitted, so of what relevance
would such a representation even if it were true be, as far as
2005 is concerned? Maybe 2006, but that's not in front of us.
Mr. Saris: I concede that point to the Court, your
Honor.
The Court: So what is your argument why we shouldn't
grant the relief requested by the Petitioner?
Mr. Saris: Other than what I've just made on behalf
of the Town, I have none...I concede that to the Court.
The Court: Okay. I appreciate that.
I1.Affirmation in Reply of David C. Wilkes dated January 17, 2006
[ " Wilkes Reply Aff. " ] at paras. 8-11; Trans. at pp. 15-19.
12.Trans. at pp. 17-18 ( " Essentially, nothing was submitted, we
did ask Judge Rosato to enter the default judgment, that was
entered. . .our client was agreeable to entering a consent judgment
that essentially masks the fact that there was a default
judgment. Had the Town not entered into the consent judgment,
they would simply be bound by the default judgment which was
never appealed. So that's the reason why the consent judgment was
entered " ).
13. Pet. at para. 5.
14. Pet. at para. 4 and Ex. C.
15. Pet. at Ex. D.
16. Pet. at para. 7 .
17. Pet. at Ex. E.
18. Pet. at para. 10 ( " This proceeding is timely commenced
because four months did not elapse since the filing of the Town
of Wappinger's certified copy of the completed and verified final
2005 assessment roll on July 1, 2005 " )
19.Pet. at paras. 8-9; Wilkes Reply Aff. at paras. 14-15.
20.This Court has previously examined the policy of selective
reassessment in McCreadv v. Assessor of Town of Ossininq, 11
Misc. 3d 1086 ( West. Sup. 2006 ); Bock v. Town/Villaqe of
Scarsdale, 11 Misc. 3d 1052 ( West. Sup. 2006 ); Markim v.
Assessor of the Town of Oranqetown, 6 Misc. 3d 1042( Rockland
Sup. 2005 ), 9 Misc. 3d 1115 ( Rockland Sup. 2005 ), mod'd 11
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Misc. 3d 1063 ( Rockland Sup. 2006 ) i MGD Holdinqs Hav, LLC v.
Assessor of the Town of Haverstraw, 8 Misc. 3d 1013 ( Rockland
Sup. 2005 ), rearqument qranted 11 Misc. 3d 1054 ( Rockland Sup.
2006 ) i Dale Joan Younq v. The Town of Bedford, 9 Misc. 3d 1107 (
West. Sup. 2005 ) i Villamena v. The City of Mount Vernon, 7 Misc.
3d 1020 (A) ( West. Sup. 2005 ). See also Dickerson, Real Property
Selective Reassessment: Annual Method Best?, New York Law
Journal, January 5, 2006, p. 7 and Siegel, Reassessment on Sale,
New York Law Journal, August 2, 2005, p. 16.
21. Saris Unsworn Aff. at paras. 4 - 9.
22. Saris Unsworn Aff. at para. 6.
23. Saris Unsworn Aff. at para. 7, Ex. B.
24. See N. 10, supra.
25. Saris Unsworn Aff. at paras. 5-7.
26. wilkes Reply Aff. at para. 10 ( " There was never any
agreement or understanding in writing or otherwise that supports
the Respondents' claim that if the property were sold it would
warrant a change in assessment " ).
27. Trans. at pp. 15-16 ( " The Court: You're claiming he made a
misrepresentation. Mr. Saris: I did not, your Honor. I'm claiming
that the prior owner made a representation upon which the Town of
Wappinger relied which his client should be bound by " ).
28. Saris Unsworn Aff. at para. 9, Ex. C.
29.Wilkes Reply Aff. at paras. 13-14, 17.
30. Compare to the quality of evidence presented by the
respondents in Matter of Akev v. Town of Plattsburqh, 300 A.D. 2d
871, 754 N. Y . S. 2d 378 ( 3d Dept. 2002 ) ( RPTL ~ 727 (2) (a) i
" Respondents met this burden by presenting evidence...
Specifically, in affidavits opposing the petition, the Town
Supervisor avers that.. .and the Town Assessor avers that [
emphasis added] ., .Thus] the record contradicts Supreme Court's
finding that respondents failed to offer evidence..." )].
31. Saris Unsworn Aff. at para. 8.
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32. wilkes Reply Aff. at para. 12 ( " It is important to note
thatl notwithstanding the fact that sales are not a valid basis
for reassessment these sales took place some six to eight months
after the taxable status date of March 11 2005 and well after the
assessor had already raised all 76 assessments of the subject
property " ).
33. See N. 101 supra.
34. Such a finding does not require evidence of malice or
recklessness. See Trans. at pp. 23-25 ( Mr. Saris:.. .If he was
wrong on the timingl that/s not something that the Town should be
penalized for. It was not done maliciouslYI it was not done
purposelYI recklesslYI or any other fashion...n ).
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