| Matter of CCM Assoc. of Clifton Park, LLC v Board of AssessmentReview of Town of Clifton Park |
| 2008 NY Slip Op 01888 [49 AD3d 941] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of CCM Associates of Clifton Park, LLC, Appellant,v Board of Assessment Review of the Town of Clifton Park et al.,Respondents. |
—[*1] Daniel G. Vincelette, P.C., Albany (Brendon D. Dupree of counsel), for Board of AssessmentReview of the Town of Clifton Park, respondent. Cooper, Erving & Savage, L.L.P., Albany (David C. Rowley of counsel), for ShenendehowaCentral School District, respondent.
Peters, J. Appeal from an order of the Supreme Court (Nolan, Jr., J.), entered April 23, 2007in Saratoga County, which, in a proceeding pursuant to RPTL article 7, among other things,denied petitioner's motion for summary judgment.
ITW Mortgage Investments IV, Inc. (hereinafter ITW) owned six separately assessed parcelswhich comprised Clifton Park Center, a shopping center in the Town of Clifton Park, SaratogaCounty. In 2004, ITW commenced an RPTL article 7 proceeding seeking to reduce respondentTown of Clifton Park's total assessment of $30 million on three of the six parcels for the 2004 taxyear. Thereafter, ITW and the Town agreed to discontinue the proceeding pursuant to certainterms and conditions. ITW and the respondents therein, agreed, on July 24, 2004, that theassessment for the 2004-2005, 2005-2006 and 2006-2007 tax years will be set at $30 million[*2]for those three parcels. In so doing, the parties acknowledgedthat the provisions of RPTL 727 were inapplicable. To the extent that the assessments on thoseremaining tax years were also set at $30 million for those three parcels, the parties agreed that no"protests or petitions claiming overvaluation" would be commenced.[FN*]
With a March 1 taxable status date (see RPTL 301, 302), petitioner purchased the sixshopping center parcels in April 2006 for $11.1 million. The purchase contract stated that ITW"has not initiated any proceedings to reduce the real estate tax assessment of the [p]roperty whichwill continue to be pending on the date of the [c]losing" and that ITW expressly disclaimed anassignment of its rights or obligations under the stipulation. Thereafter, petitioner sought tosecure a reduction of the 2006 assessment from respondent Board of Assessment Review of theTown of Clifton Park, despite the fact that the three parcels identified in the stipulation wereassessed a total of $30 million. In that application, petitioner alleged that the properties wereovervalued and unequally assessed (see RPTL 706; see generally RPTL 701 [4],[8]). When petitioner failed to secure a reduction due to a lack of proof, petitioner commencedthis RPTL article 7 proceeding. Before any discovery was commenced, petitioner moved forsummary judgment, primarily relying upon its purchase price, multiplied by the Town's 2006equalization rate. Respondents cross-moved to dismiss the petition, contending that petitionerwas bound by the stipulation. Supreme Court denied petitioner's motion and partially grantedrespondents' cross motion by dismissing any challenge to the three parcels identified in thestipulation. Petitioner appeals.
Limiting our review to the issues raised before Supreme Court, we first address whether thestipulation between ITW and the Town precludes petitioner from challenging the 2006assessment of the three parcels identified in the stipulation. Recognizing that ITW was the recordowner of the subject property as of the March 1, 2006 taxable status date, we conclude that thestipulation of settlement applies (see RPTL 302; Long Is. Power Auth. vShoreham-Wading Riv. Cent. School Dist., 88 NY2d 503, 512 [1996]; Matter ofAlexander's Dept. Store of Val. Stream v Board of Assessors, 227 AD2d 549, 549 [1996];Spiegel v Board of Assessors, 161 AD2d 627, 629 [1990], lv dismissed 76 NY2d889 [1990]). The Town assigned the assessed value contemplated by the stipulation.
We next review the terms of that stipulation to determine if the challenges made by petitionersurvive. Viewing the clear and unambiguous language of the stipulation as solely precluding achallenge to an assessment based upon a claim of "overvaluation pursuant to [the] Real PropertyTax Law," we find that while the overvaluation claim is precluded, the claim of unequalassessment on those three parcels is not (see RPTL 706). Next addressing whetherpetitioner sustained its prima facie burden to have judgment granted to it as a matter of law onthat issue (see CPLR 3212; Zuckerman v City of New York, 49 NY2d 557[1980]), we find its proffer insufficient. While we acknowledge the submission of evidencesupporting its contention that it purchased the shopping center in 2006 in an arm's lengthtransaction which is "not [*3]explained away as abnormal in anyfashion" (Plaza Hotel Assoc. v Wellington Assoc., 37 NY2d 273, 277 [1975]), and thatsuch evidence may well be "the best evidence of value" (Matter of Niagara Mohawk PowerCorp. v Town of Moreau Assessor, 307 AD2d 669, 670 [2003]), petitioner failed to submitsufficient evidence to establish its claim of unequal assessment on these three parcels(see RPTL 706; Matter of Sofia v Assessor of Town of Eastchester, 294 AD2d509, 509-510 [2002]).
Mercure, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as precluded a challenge to theassessment of the three parcels identified in the stipulation on the basis of unequal assessment,and, as so modified, affirmed.
Footnote *: Petitioner also reserved its rightto commence the appropriate proceedings should the assessment "exceed $30,000,000 for either2005/06 and/or 2006/07 tax year(s), or should the subject property be destroyed or substantiallydamaged."