| Matter of Long Is. Indus. Group v Board of Assessors |
| 2010 NY Slip Op 03449 [72 AD3d 1090] |
| April 27, 2010 |
| Appellate Division, Second Department |
| In the Matter of Long Island Industrials Group,Respondent, v Board of Assessors et al., Appellants. |
—[*1] Santemma & Deutsch, LLC, Syosset, N.Y. (Jon N. Santemma of counsel), forrespondent.
In six consolidated proceedings pursuant to Real Property Tax Law article 7 to review taxassessments, the Board of Assessors and Board of Assessment Review of Nassau County appeal,as limited by their brief, from so much of an amended order of the Supreme Court, NassauCounty (Bucaria, J.), dated January 29, 2009, as granted the petitioner's motion to consolidatethe proceedings and precluded them from producing expert testimony on the issue of valuationfor the 2004/2005, 2005/2006, 2006/2007, 2007/2008, and 2008/2009 tax years at theconsolidated trial.
Ordered that the amended order is modified, on the law, by deleting the provision thereofprecluding the Board of Assessors and Board of Assessment Review of Nassau County fromproducing expert testimony on the issue of valuation for the 2004/2005, 2005/2006, 2006/2007,2007/2008, and 2008/2009 tax years at the consolidated trial; as so modified, the amended orderis affirmed insofar as appealed from, with costs to the appellants.
In April 2003 the petitioner commenced a tax certiorari proceeding to review the 2003/2004assessment of its investment property made by the Board of Assessors of Nassau County andupheld by the Assessment Review Commission of Nassau County (hereinafter together theCounty). Each of the next five years thereafter, the petitioner commenced proceedings to reviewthe assessment for that tax year. In 2006, the petitioner filed a note of issue on the 2003/2004proceeding and obtained a calendar number. The matter was assigned a court-ordered appraisalexchange date of July 22, 2008. The County defaulted in serving an appraisal by that date. "Trialby inquest" was scheduled for November 24, 2008. On August 21, 2008, the petitioner providedthe required statements of income and expense and filed notes of issue for the 2004/2005 through2008/2009 tax years.
The petitioner then moved to consolidate the six proceedings for trial. The Supreme Courtgranted consolidation in an amended order dated January 29, 2009, and precluded the Countyfrom producing expert testimony on valuation at the consolidated trial, due to its default inserving an appraisal in the first proceeding. The County appeals.[*2]
Insofar as the County's appeal can be construed aschallenging the consolidation of the proceedings, consolidation was proper. Where "the samegrounds of review are asserted and a common question of law or fact is presented," the trial courtmay consolidate proceedings in its discretion (RPTL 710; see CPLR 602 [a]). Under theapplicable court rules, consolidation is conditioned solely upon service having been made of theincome and expense statements for each tax year under review (see 22 NYCRR 202.59[f]). The court granted the petitioner's motion for consolidation after income and expensestatements for each tax year had been served. Insofar as the County challenges the adequacy ofthe income and expense statements, the court cannot meaningfully review that contention sincethe statements have not been included in the record on appeal (see CPLR 5526;Campos v Ofman, 49 AD3d 485 [2008]; Levi v Levi, 46 AD3d 519 [2007]).
However, the Supreme Court erred in precluding the County from producing experttestimony on the issue of valuation for the 2004/2005 through 2008/2009 tax years. Any partywho fails to serve an appraisal report by a court-ordered appraisal exchange date is precludedfrom offering expert testimony on value, unless such default is excused by the court uponapplication and good cause shown (see 22 NYCRR 202.59 [h]; Matter of R.J. TaylorBldrs. v City of Saratoga Springs Bd. of Assessment Review, 263 AD2d 829 [1999]). TheCounty failed to serve an appraisal by the July 22, 2008, exchange date set in the 2003/2004proceeding, and does not challenge the preclusion of expert testimony on valuation for thatproceeding.
However, the County is correct that its failure to file an appraisal by the exchange date set inthe 2003/2004 proceeding is not a default in the later proceedings. The proceedings could not beconsolidated until after the income and expense statements were filed in August 2008 (see22 NYCRR 202.59 [f]). Moreover, exchange dates for appraisals are to be ordered after thenotes of issue are filed (see 22 NYCRR 202.59 [e] [1]). Accordingly, the July 22, 2008,exchange date directed in the 2003/2004 proceeding did not apply to the proceedings for the latertax years.
Where the Supreme Court does not set an exchange date, the parties must submit appraisalsat least 10 days before trial (see 22 NYCRR 202.59 [e] [1] [i]). Should the County serveappraisals for the 2004/2005, 2005/2006, 2006/2007, 2007/2008, and 2008/2009 tax years bythat date, or any such earlier date to be set by the Supreme Court, it should not be precludedfrom offering expert testimony on valuation as to those tax years. In such event, such testimonymay be proffered at the consolidated trial, and considered by the court solely on the petitioner'schallenges to the assessments for those tax years. Mastro, J.P., Leventhal, Lott and Austin, JJ.,concur.