                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   517488
________________________________

In the Matter of GOODHUE
   WILTON PROPERTIES, INC.,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ASSESSOR OF THE TOWN OF WILTON,
                    Respondent,
                    et al.,
                    Respondent.
________________________________


Calendar Date:   September 4, 2014

Before:   Peters, P.J., Stein, Garry and Lynch, JJ.

                             __________


     Brian D. Mercy, Schenectady, for appellant.

      The Vincelette Law Firm, Albany (Jonathan G. Schopf of
counsel), for Assessor of the Town of Wilson, respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Nolan Jr.,
J.), entered June 26, 2013 in Saratoga County, which partially
granted petitioner's application, in a proceeding pursuant to
RPTL article 7, to reduce the 2009 tax assessment on certain real
property owned by petitioner.

      In 2006, petitioner purchased 72.58 acres of vacant,
unimproved land located in the Town of Wilton, Saratoga County
for $330,000. Two years later, petitioner conveyed 26 acres of
the property to the Town as part of its application for a
subdivision approval. Following this conveyance, the 2008
assessment for the remaining 46.58 acres (hereinafter the subject
                              -2-                517488

property) was reduced to $230,100. After the subdivision map was
approved and filed, the subject property was divided into a
roadway parcel and 29 separate residential parcels that ranged in
size from .95 acre to 3.24 acres. In 2009, the subject property
was assessed as having a total value of $1,127,500. Petitioner
thereafter commenced this RPTL article 7 proceeding to challenge
this assessed value. After a nonjury trial, at which the parties
each offered the testimony and detailed reports of their
appraisers, Supreme Court determined to adjust the assessments
with respect to 22 of the residential parcels and the roadway,
resulting in a net assessment reduction of those parcels to
$755,753.99. Petitioner now appeals and we affirm.

      Initially, we reject petitioner's argument that respondent
Assessor of the Town of Wilton (hereinafter respondent) did not
meet its burden because it did not explain its methodology.
Generally, because a tax assessor's property valuation is
presumed to be valid, respondent did not have the initial burden
to establish "proof of the correctness of their valuation"
(Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d
179, 187 [internal quotation marks and citation omitted]). Where
an assessor revalues a particular property between town-wide
revaluations and there is a claim that property was selectively
reassessed, "he or she must be prepared to show how any change
brings such assessment into line with those of other properties
whose assessments go unchanged" (Matter of Harris Bay Yacht Club,
Inc. v Town of Queensbury, 68 AD3d 1374, 1375 [2009] [internal
quotation marks and citation omitted]). Here, although
petitioner alleged in its petition that the property was
selectively assessed, because it presented no arguments or
evidence in support of this claim in the proceedings before
Supreme Court, we find that it was not preserved for our review
(see Matter of Gibson v Gleason, 20 AD3d 623, 624 [2005], lv
denied 5 NY3d 713 [2005]). Moreover, the claim is not applicable
where, as here, each parcel was separately assessed following the
filing of subdivision maps (see RPTL 504 [4]; Matter of Bernard v
Rosenthal, 172 AD2d 931 [1991], lv denied 78 NY2d 864 [1991]
[unless impracticable, subdivision lots should be separately
assessed]).
                              -3-                517488

      After hearing the testimony and written report by
petitioner's appraiser, Supreme Court determined, and respondent
does not now dispute, that petitioner overcame the generally
applicable presumption of validity, by demonstrating
"[s]ubstantial evidence" of overvaluation, or, put differently,
"the existence of a valid and credible dispute regarding
valuation" (Matter of Adirondack Mtn. Reserve v Board of
Assessors of the Town of N. Hudson, 106 AD3d 1232, 1234 [2013]
[internal quotation marks and citation omitted]). Accordingly,
the court was obligated to "weigh the entire record, including
evidence of claimed deficiencies in the assessment, to determine
whether petitioner has established by a preponderance of the
evidence that its property has been overvalued" (Matter of FMC
Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d at 188). On this
appeal, "the issue distills to whether Supreme Court's
determination is supported by the weight of the evidence" (Matter
of Brooks Drugs, Inc. v Board of Assessors of City of
Schenectady, 51 AD3d 1094, 1095 [2008], lv denied 11 NY3d 710,
[2008] [internal quotation marks and citations omitted]).

      At trial, petitioner relied on the testimony of David
Fontana, a real estate appraiser retained to value the subject
property. Using the comparable sales method, Fontana determined
that, for tax year 2009, the property should have been valued at
$6,200 per acre or $290,000 for the entire property. In
Fontana's view, the property should have been valued as one
parcel, on a per-acre basis, not 29 separate parcels. Respondent
relied on the testimony and report of its expert, Steven Clark,
who also used the comparable sales method. Clark valued each
parcel separately to conclude that, for tax year 2009, the
aggregate value of the subject property was $1,183,000. During
his testimony, Clark explained that the "interior" parcels
without any infrastructure were not as valuable as those with
frontage on the town road. As to the interior lots, he valued
each at $37,000, even though the parcels varied in size.

      Petitioner now contends that Supreme Court should have
valued the property as a whole, on a per-acre basis, and that it
should not have assigned a separate value to each parcel. We
disagree. Generally, whether a property should be valued as a
whole or as the sum of separate parcels is a factual
                              -4-                517488

determination (see Matter of Adirondack Mtn. Reserve v Board of
Assessors of the Town of N. Hudson, 106 AD3d at 1234). Further,
"[w]here . . . conflicting expert evidence is presented, [this
Court] defer[s] to the trial court's resolution of credibility
issues" (Matter of Lowe's Home Ctrs., Inc. v Board of Assessment
Review and/or Dept. of Assessment Review of Tompkins County, 106
AD3d 1306, 1307 [2013]). In our view, Supreme Court properly
rejected petitioner's opinion in this regard. As the Court
noted, petitioner's expert failed to recognize that, although
unimproved, the subject property had been legally subdivided into
29 separate parcels and that seven parcels were immediately
marketable (see Matter of Ulster Bus. Complex v Town of Ulster,
293 AD2d 936, 940 [2002]). As Supreme Court's factual finding is
explained and supported by the record, it is entitled to
deference (see Matter of City of Troy v Town of Pittstown, 306
AD2d 718, 720 [2003], lv denied 1 NY3d 505 [2003]).

      We further find that Supreme Court's determination of each
parcel's value is supported by the record. As noted, both
experts relied upon evidence of comparable sales, which is
"generally the preferred measure of a property's value for
assessment" (Matter of Lowe's Home Ctrs., Inc. v Board of
Assessment Review and/or Dept. of Assessment Review of Tompkins
County, 106 AD3d at 1307 [internal quotation marks and citation
omitted]). Contrary to petitioner's argument, the record
confirms that when he cited comparable sales, respondent's expert
did consider the absence of any infrastructure with respect to
the subject property's 22 interior parcels, and made adjustments
where necessary.1 Supreme Court properly exercised its authority
to adjust the parties' valuations, and its adjustments are
adequately explained and supported by the record (see Matter of
Adirondack Mtn. Reserve v Board of Assessors of the Town of N.
Hudson, 106 AD3d at 1240). We find no basis to disturb Supreme
Court's judgment incorporating its decision and assigning value


    1
        Supreme Court primarily relied on a comparable sale cited
by both experts. Respondent's expert specifically noted that the
parcels in such comparable sale were sold on a per-lot basis
prior to the completion of the infrastructure and roadway.
Accordingly, no adjustments were necessary.
                                 -5-                   517488

to each of the 22 interior lots.2

         Peters, P.J., Stein and Garry, JJ., concur.



         ORDERED that the judgment is affirmed, without costs.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     2
        Supreme Court's judgment assigned a value to one parcel
that exceeded the value assigned by respondent's appraiser at
trial (parcel 3) and a value to seven parcels that exceeded both
the value assigned by respondent's appraiser and the assessment
at issue (parcels 1, 2, 11, 18, 27, 28 and 29). The judgment was
submitted on notice and Supreme Court retained jurisdiction to
resolve any disputes with regard to individual assessments, but
petitioner did not object to the individual assessments either
before Supreme Court or upon this appeal. Thus, any issue in
this regard has been abandoned (see Roohan v First Guar. Mtge.,
LLC, 97 AD3d 891, 892 [2012]; Matter of Lehigh Portland Cement
Co. v Assessor of the Town of Catskill, 263 AD2d 558, 560
[1999]).
