        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

617
CA 11-02181
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF TOM THOMAS AND THOMAS
ESTATES WEST, PETITIONERS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

CYNTHIA L. BOHEEN DAVIS, ASSESSOR, AND BOARD
OF ASSESSMENT REVIEW OF TOWN OF CLARENDON,
ORLEANS COUNTY, RESPONDENTS-RESPONDENTS.


JACOBSON LAW FIRM, P.C., PITTSFORD (ROBERT L. JACOBSON OF COUNSEL),
FOR PETITIONERS-APPELLANTS.

BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (JOEL R. KURTZHALTS
OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Orleans County (James
P. Punch, A.J.), entered January 25, 2011 in a proceeding pursuant to
RPTL article 7. The order denied the petitions.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting in part the petitions
challenging the assessments for the 2005-2006, 2006-2007 and 2007-2008
tax years by reducing the assessment on tax parcel number 99-1-16.1
for those tax years to $12,350,000, $12,390,000 and $12,510,000,
respectively, and reducing the assessments on tax parcel number 99-2-
39.21 for those tax years to $2,745,000, $3,615,000 and $4,095,000,
respectively, and as modified the order is affirmed without costs.

     Memorandum: Petitioners, Tom Thomas and the company by which he
runs his mobile home park, commenced this RPTL article 7 proceeding
seeking review of the real property tax assessments for the mobile
home park, which is situated on two contiguous parcels of real
property, for the tax years 2005-2006, 2006-2007 and 2007-2008.
Contrary to petitioners’ contentions, Supreme Court properly concluded
that they failed to meet their burden of establishing by a
preponderance of the evidence that the assessments were excessive.
“Our analysis begins with the recognition that a property valuation by
the tax assessor is presumptively valid . . . and thus ‘obviates any
necessity, on the part of the assessors, of going forward with proof
of the correctness of their valuation’ . . . However, when a
petitioner challenging the assessment comes forward with ‘substantial
evidence’ to the contrary, the presumption disappears” (Matter of FMC
Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 187; see Matter
of Carriage House Motor Inn v City of Watertown, 136 AD2d 895, 895-
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                                                         CA 11-02181

896, affd 72 NY2d 990). “In the context of tax assessment cases, the
‘substantial evidence’ standard merely requires that petitioner
demonstrate the existence of a valid and credible dispute regarding
valuation” (FMC Corp., 92 NY2d at 188; see Matter of East Med. Ctr.,
L.P. v Assessor of Town of Manlius, 16 AD3d 1119, 1120). “Once this
initial burden has been met, the reviewing court ‘must weigh the
entire record, including evidence of claimed deficiencies in the
assessment, to determine whether [the] petitioner has established by a
preponderance of the evidence that its property has been overvalued’ ”
(Matter of United Parcel Serv. v Assessor of Town of Colonie, 42 AD3d
835, 837, quoting FMC Corp., 92 NY2d at 188).

     Initially, we note that petitioners’ contention that Supreme
Court was required to reject respondents’ appraisal is of no moment.
The court unequivocally stated that it did not consider that appraisal
because petitioners failed to establish that the assessment was
excessive. Inasmuch as the court did not rely upon respondents’
appraisal, its validity is not before us except insofar as it operates
as a party admission, as discussed herein.

     Petitioners’ further contention, that the court erred by, in
effect, striking their appraisal, is without merit. The court did not
strike petitioners’ appraisal. Indeed, the court reached the second
step of the FMC Corp. analysis by concluding that petitioners failed
to establish by a preponderance of the evidence that the assessment
was excessive, which is a step that the court correctly concluded it
could take “[o]nce a petitioner meets it burden of overcoming the
presumption of validity.” Inasmuch as petitioners’ appraisal is the
only evidence upon which the court could have relied in concluding
that petitioners met their initial burden, the court implicitly
concluded that the appraisal was sufficient to “demonstrate the
existence of a valid and credible dispute regarding valuation” (FMC
Corp., 92 NY2d at 188).

     Petitioners’ further contention that they established by a
preponderance of the evidence that the assessments at issue were
excessive is without merit. Petitioners relied upon a single
appraisal encompassing all of the challenged tax years. Petitioners’
expert submitted an appraisal report that used two methods of
calculating the value of the subject parcels, the income and market
approaches, but he affixed a different value to each parcel than would
be reached by either method. In his report and at trial, he failed to
explain how he reconciled those values to arrive at the final value
that he placed on the subject parcels. Consequently, “[t]he trial
court properly determined that the submission of an appraisal without
ascertainable or verifiable data supporting the appraiser’s
conclusions of value constituted a violation of 22 NYCRR 202.59 (g)
(2), which provides, in pertinent part, that: ‘[t]he appraisal
reports shall contain a statement of the method of appraisal relied on
and the conclusions as to value reached by the expert, together with
the facts, figures and calculations by which the conclusions were
reached’ ” (Matter of Orange & Rockland Utils. v Williams, 187 AD2d
595, 596). Thus, the court properly refused to rely upon petitioners’
“appraisal report on the ground that it consistently made ‘conclusions
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                                                        CA 11-02181

without supporting calculations, rendering it impossible . . . to
analyze’ the report” (Matter of John P. Burke Apts. v Swan, 137 AD2d
321, 325).

     Furthermore, when testifying regarding the report, petitioners’
expert repeatedly indicated that he assigned a value to individual
units within the two parcels that was hundreds or thousands of dollars
lower than the price for which those units had been sold during the
period in question. Although several methods of valuing real property
are acceptable, “the market value method of valuation is preferred as
the most reliable measure of a property’s full value for assessment
purposes” (Matter of General Elec. Co. v Town of Salina, 69 NY2d 730,
731), because “[t]he best evidence of value, of course, is a recent
sale of the subject property between a seller under no compulsion to
sell and a buyer under no compulsion to buy” (Matter of Allied Corp. v
Town of Camillus, 80 NY2d 351, 356, rearg denied 81 NY2d 784). Here,
the court properly refused to credit that valuation because the expert
repeatedly and consistently valued individual units on the subject
properties at amounts that were less than willing buyers had paid to
sellers under no compulsion to sell. Indeed, we note that many of the
units were sold by petitioners themselves, and we conclude therefrom
that the failure of petitioners’ expert to use those sale prices as
evidence of value demonstrates the invalidity of the expert’s
conclusions.

     We conclude, however, that the court erred in dismissing the
petitions. Notwithstanding petitioners’ failure to meet their
ultimate burden, “the court was required to consider the entire record
and that respondents’ appraisals, received in evidence, constituted
admissions against interest by respondents that the assessments were
excessive to the extent that they exceeded those appraisals, despite
the fact that the supporting data was rejected by the court” (Matter
of South Slope Holding Corp. v Comstock, 280 AD2d 883, 885; see Matter
of Arsenal Hous. Assoc. v City Assessor of City of Watertown, 298 AD2d
830, 831; Matter of Boyce-Canandaigua, Inc. v Brown, 289 AD2d 971,
971, rearg granted on other grounds 294 AD2d 960). Inasmuch as
respondents’ assessments exceeded the appraisals for each of the tax
years at issue, we modify the order accordingly.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
