| Matter of Eckerd Corp. v Burin |
| 2011 NY Slip Op 02985 [83 AD3d 1239] |
| April 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of Eckerd Corporation, Respondent, v John Burin, asAssessor of the City of Elmira, et al., Appellants. (And Six Other RelatedProceedings.) |
—[*1] Jacobson Law Firm, P.C., Pittsford (Robert L. Jacobson of counsel), forrespondent.
Stein, J. Appeals (1) from an order of the Supreme Court (Mulvey, J.), entered November 25,2009 in Chemung County, which, among other things, in seven proceedings pursuant to RPTLarticle 7, partially granted petitioner's motion to, among other things, file a late judgment, and (2)from a judgment of said court, entered December 18, 2009 in Chemung County, which grantedpetitioner's applications, in six proceedings pursuant to RPTL article 7, to reduce the 2002/2003through 2007/2008 tax assessments on certain real property owned by petitioner.
Petitioner owns two Eckerd pharmacies located in the City of Elmira, Chemung Countywhich are subject to a 20-year fixed lease agreement. Petitioner's properties were assessed at$2,100,000 for the tax years 2002/2003 through 2007/2008. Petitioner filed grievances withrespondent Board of Assessment Review of the City of Elmira challenging the assessments, butthey were denied. Consequently, petitioner commenced six proceedings seeking to reduce itsassessments for the tax years in question.[FN1][*2]
At trial, each party offered appraisals into evidence forthe properties at issue. Petitioner's expert, Chris Harland, opined that the value of each of theproperties was $1,200,000. Respondents' appraiser, David Schwaner, valued each property at$2,100,000—a number consistent with respondents' tax assessments. Supreme Courtreduced the assessments in accordance with the appraisals submitted by petitioner, finding themto be a more accurate reflection of market value. At the conclusion of its decision, SupremeCourt directed the parties to "settle judgment on ten days notice." Supreme Court's decision wasthen entered on May 16, 2008.
On September 4, 2008, petitioner sent a proposed final order and judgment to respondents,which they rejected, asserting that the matter had been abandoned due to the failure of petitioner'scounsel to submit a proposed final order and judgment within 60 days of the date that thedecision was signed and filed, as required by the Uniform Rules for the New York State TrialCourts (see 22 NYCRR 202.48 [a], [b]). Soon thereafter, petitioner sent a letter toSupreme Court requesting that it amend its decision of May 9, 2008, so as to be more consistentwith the proposed order and judgment. Respondents opposed the issuance of an amendeddecision based upon petitioner's alleged abandonment of the proceedings. Ultimately, petitionercommenced a new (seventh) proceeding—by petition filed in December 2008 andamended in February 2009—seeking virtually the identical relief it was awarded inSupreme Court's May 2008 decision and later moved for, among other things, leave to file ajudgment.[FN2]Supreme Court permitted petitioner to file the late judgment, finding that petitioner haddemonstrated good cause for the delay and, therefore, had not abandoned the matter.Accordingly, Supreme Court determined that, in light of its adoption of petitioner's proposedorder and judgment, petitioner's recently filed petition and amended petition were moot and thatit was unnecessary to amend its prior decision. Respondents now appeal and we affirm.
Addressing first respondents' contention that petitioner abandoned the proceedings, we notethat, by virtue of Supreme Court's directive to settle the judgment, petitioner was required tosubmit a proposed order and judgment within 60 days of May 16, 2008—the date on whichthe court's decision was signed and filed. However, petitioner did not do so until October 6,2008. Accordingly, the proceedings would be deemed to have been abandoned unless petitionerdemonstrated good cause for the delay (see 22 NYCRR 202.48 [a]; Funk v Barry,89 NY2d 364, 366 [1996]; Meldrim v Hill, 260 AD2d 836, 839 [1999]). Here,respondents do not dispute that petitioner demonstrated good cause for the initial delay ofapproximately 45 days in submitting the proposed judgment. Instead, they argue that petitionershould be deemed to have abandoned the proceedings because the further delay until May 2009in submitting the motion for permission to file the late judgment was without good cause. Wedisagree.
The plain language of 22 NYCRR 202.48 (a) requires that a proposed order or judgment besubmitted for signature within 60 days of the filing of the decision, but does not contain a timelimit for submitting a motion for permission to file a late order or judgment (see generallyFunk v Barry, 89 NY2d at 366; Matter of Greek Peak v Armstrong, 236 AD2d 181,184 [1997]). Notably, petitioner did not simply fail to take any action between October 2008 andMay 2009 [*3]but, rather, filed a new petition and amendedpetition in the event the court were to determine that it had abandoned the initial six proceedings.Moreover, respondents have not alleged that any prejudice resulted from the delay in moving tofile a late judgment. While the absence of prejudice is not sufficient to warrant a finding of goodcause, it is relevant to our determination that Supreme Court did not abuse its discretion inpermitting the late submission (seeNeri's Land Improvement, LLC v J.J. Cassone Bakery, Inc., 65 AD3d 1312, 1314[2009]; Lawton v Lawton, 239 AD2d 866, 866 [1997]; Tuller v Tuller, 162AD2d 801, 802 [1990]).
Respondents next contend that the appraisals submitted by petitioner should have been struckin light of Harland's use of an incorrect valuation date. Again, we disagree. Although Harlandused a valuation date of January 1, rather than the valuation date of June 1 used by the City, hetestified that his report would not have differed if he had used the June 1 valuation date.Significantly, he further testified that his opinion was based upon research contained in his reportdemonstrating that comparable sales had remained steady for several years before and after thevaluation date—a fact with which Schwaner did not disagree. While an appraisal may bestruck for the use of an inaccurate valuation date (see RPTL 302 [1]; Matter of Markham v Comstock, 38AD3d 1262, 1263 [2007]; Matter of Northville Indus. Corp. v Board of Assessors ofTown of Riverhead, 143 AD2d 135, 136 [1988]), Harland did not deviate from theconclusions contained within his report and we perceive no prejudice to respondents due to theminor deviation in valuation dates so as to warrant striking his report (see Matter of Barron vTown of Esopus, 246 AD2d 707, 708 [1998]; Matter of Pepsico, Inc. v Bouchard,102 AD2d 1000, 1001 [1984]; seegenerally Matter of Regency Realty Assoc., LLC v Board of Assessment Review of the Town ofMalta, 75 AD3d 950, 951-952 [2010]). Furthermore, inasmuch as Harland's report wassupported by ascertainable and verifiable data (see Matter of Ames Dept. Stores v Assessor ofTown of Greenport, 276 AD2d 890, 892 [2000]; Matter of Orange & Rockland Utils. vWilliams, 187 AD2d 595, 596 [1992]), any questions regarding the propriety of hisassessment would affect only the weight accorded to the appraisal by the court and did not"undermine the validity of the entire appraisal" (Matter of Myron Hunt/Shaker Loudon Assoc. v Board of AssessmentReview for Town of Colonie, 6 AD3d 953, 956 [2004]; see Matter of OCG L.P. v Board ofAssessment Review of the Town of Owego, 79 AD3d 1224, 1225 [2010]).
Turning to the merits, we also find unavailing respondents' contention that Supreme Court'sdetermination was against the weight of the evidence. This contention was based upon Harland'sallegedly improper use of the sales of ordinary retail properties, without consideration of nationalretail drug stores, in his sales comparison method of valuation. The exclusion of national retaildrug stores from Harland's analysis was premised upon his designation of those properties as"build-to-suit," meaning that they often have above-market leases attributable to premiums beingpaid to acquire the land, as well as assembly, demolition and construction costs. He explained hisopinion that these factors would result in an appraisal that was not truly reflective of marketvalue and provided a reasonable basis for comparing the properties to ordinary retail propertiesand for declining to consider the sales prices of certain properties utilized as comparables bySchwaner.
We have previously reviewed and accepted Harland's method of valuing similar build-to-suitlease properties (see Matter of EckerdCorp. v Semon, 44 AD3d 1232, 1234 [2007]; Matter of Eckerd Corp. v Semon, 35 AD3d 931, 934 [2006]) andperceive no basis to reject it here. Thus, upon our review of the record and giving due deferenceto Supreme Court's assessment of credibility, we find Supreme Court's determination thatpetitioner demonstrated that the subject properties were overvalued to be in accord with theweight of the evidence and [*4]we find no reason to disturb it(see Matter of Regency Realty Assoc., LLC v Board of Assessment Review of the Town ofMalta, 75 AD3d at 951; Matter ofGeneral Elec. Co. v Assessor of Town of Rotterdam, 54 AD3d 469, 471-472 [2008],lv denied 11 NY3d 711 [2008]).
Spain, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order and judgmentare affirmed, without costs.
Footnote 1: The parties stipulated that thesame assessment would apply to each of the relevant tax years.
Footnote 2: In response, respondents movedto dismiss the petition and amended petition as time barred. Supreme Court deemed respondents'motion to be moot based on its finding that the petition and amended petition were moot.