                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   516152
____________________________________

In the Matter of HIGHBRIDGE
   DEVELOPMENT BR, LLC,
                    Appellant,
      v

ASSESSOR OF THE TOWN OF
   NISKAYUNA et al.,                        MEMORANDUM AND ORDER
                    Respondent,
      and

SOUTH COLONIE CENTRAL SCHOOL
   DISTRICT
                    Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   September 4, 2014

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

                             __________


      Parisi, Coan & Saccocio, PLLC, Schenectady (Brian D. Mercy,
Schenectady, of counsel), for appellant.

      Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of
counsel), for South Colonie School District, respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Reilly Jr.,
J.), entered October 31, 2012 in Schenectady County, which
dismissed petitioner's applications, in three proceedings
pursuant to RPTL article 7, to reduce the 2008, 2009 and 2010 tax
assessments of certain real property located in the Town of
                              -2-                516152

Niskayuna.

      Petitioner owns a 12.33-acre parcel of real property
located in the Town of Niskayuna, Schenectady County. The
property, which had previously been used as an adult retirement
home and received tax exempt status, was sold to petitioner in
May 2008 for $3.5 million in a simultaneous transaction in which
petitioner contracted to resell the property for $7.5 million.
For reasons not relevant here, such resale was not consummated
and petitioner retained title. After receiving notice of the
sale of the property to petitioner, respondent Assessor of the
Town of Niskayuna notified petitioner in November 2008 that the
property was no longer tax exempt and would be taxed for the 2008
tax year on its $3.1 million assessed value. The Assessor
thereafter assessed the property at $3.1 million for the 2009 tax
year and $3.5 million for tax year 2010.

      Petitioner commenced these proceedings pursuant to RPTL
article 7 challenging the 2008, 2009 and 2010 tax assessments.
Supreme Court denied petitioner's pretrial motion for summary
judgment on its petitions for the 2008 and 2009 tax years, and
reserved decision on respondents' motion to dismiss the 2009 and
2010 petitions for failure to timely serve respondent South
Colonie School District (hereinafter SCCSD) pursuant to RPTL 708
(3). A nonjury trial ensued, during which each side presented
testimony from an appraiser and competing expert appraisals of
the property's fair market value. Supreme Court dismissed the
2008 petition for failure to exhaust administrative remedies, the
2009 petition on the merits and the 2010 petition for failure to
timely serve notice upon the appropriate school district.
Petitioner appeals, and we affirm.

      Supreme Court properly dismissed the 2010 proceeding for
failure to comply with RPTL 708 (3). It is undisputed that
petitioner failed to serve a copy of the 2010 notice of petition
and petition upon the superintendent of SCCSD, the school
district within which the subject property is located, within 10
days of service of the petition upon the Assessor, as required by
RPTL 708 (3). Failure to strictly comply with the statute's
notice requirements "shall result in the dismissal of the
petition, unless excused for good cause shown" (RPTL 708 [3]).
                              -3-                516152

No such showing has been made here. Petitioner was aware that
SCCSD was the proper school district, having previously served
SCCSD with the 2008 petition and engaged in litigation with it in
connection with that proceeding, and "[t]he mistake or omission
of . . . petitioner's attorney does not constitute 'good cause
shown' within the meaning of RPTL 708 (3) to excuse
. . . petitioner's failure to comply" (Matter of Wyeth Holdings
Corp. v Assessor of the Town of Orangetown, 84 AD3d 1104, 1106
[2011] [internal quotation marks and citation omitted]; see
Matter of Board of Mgrs. of Copley Ct. Condominium v Town of
Ossining, 19 NY3d 869, 871 [2012]). Nor may noncompliance with
the statute be excused on the ground that SCCSD has not been
prejudiced thereby (see Matter of Board of Mgrs. of Copley Ct.
Condominium v Town of Ossining, 19 NY3d at 871; Matter of Gatsby
Indus. Real Estate, Inc. v Fox, 45 AD3d 1480, 1481 [2007]; Matter
of Orchard Hgts., Inc. v Yancy, 15 AD3d 854, 854 [2005], lv
denied 4 NY3d 710 [2005]).

      Turning to petitioner's challenges to the 2008 and 2009 tax
assessments, we first conclude that Supreme Court properly denied
its motion for summary judgment. Our analysis begins with the
recognition that property valuations by a municipal tax assessor
are presumed to be valid (see Matter of FMC Corp. [Peroxygen
Chems. Div.] v Unmack, 92 NY2d 179, 187 [1998]; Matter of Niagara
Mohawk Power Corp. v Assessor of Town of Geddes, 92 NY2d 192, 196
[1998]). A property owner may overcome this presumption by
proffering substantial evidence that the assessment is erroneous,
which is often accomplished by submission "of a detailed,
competent appraisal, based on standard, accepted appraisal
techniques and prepared by a qualified appraiser, demonstrat[ing]
the existence of a genuine dispute concerning valuation" (Matter
of OCG L.P. v Board of Assessment Review of the Town of Owego, 79
AD3d 1224, 1225 [2010] [internal quotation marks and citations
omitted]; see Matter of Niagara Mohawk Power Corp. v Assessor of
Town of Geddes, 92 NY2d at 196; Matter of Adirondack Mtn. Reserve
v Board of Assessors of the Town of N. Hudson, 106 AD3d 1232,
1234 [2013]; Matter of Rite Aid Corp. v Otis, 102 AD3d 124, 126
[2012], lv denied 21 NY3d 855 [2013]). Here, in support of its
motion for summary judgment, petitioner submitted only an
attorney's affidavit that asserted in a conclusory manner that
the property had been overvalued (see Matter of LCO Bldg. LCC v
                              -4-                516152

Michaux, 53 AD3d 1062, 1062-1063 [2008], lv dismissed 11 NY3d 837
[2008]; Fusco v Assessor of City of Utica, 178 AD2d 995, 995
[1991]).1 Having failed to proffer substantial evidence on the
motion to overcome the presumptive validity of the challenged
assessments, petitioner was not entitled to relief at the summary
judgment stage.

      At trial, petitioner offered the expert appraisal reports
and testimony of a certified real estate appraiser, who utilized
the sales comparison methodology to value the property at $1.3
million for the 2008 tax year and $1.4 million for the 2009 tax
year. This evidence was sufficient to rebut the presumption of
validity and establish a credible dispute between the parties
regarding valuation (see Matter of Adirondack Mtn. Reserve v
Board of Assessors of the Town of N. Hudson, 106 AD3d at 1236;
Matter of Corvetti v Winchell, 75 AD3d 1013, 1014 [2010], lv
denied 16 NY3d 701 [2011]; Matter of Northern Pines MHP, LLC v
Board of Assessment Review of the Town of Milton, 72 AD3d 1314,
1315-1316 [2010]). Supreme Court was then required 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; see Matter of Rite Aid Corp. v Otis, 102
AD3d at 126; Matter of Eckerd Corp. v Semon, 35 AD3d 931, 932
[2006]). "Our review of such a determination must necessarily
defer to Supreme Court in its resolution of any credibility
issues that have been generated by the conflicting expert
opinions[,] and is limited to whether the court's determination
of the fair market value of the subject property is supported by


    1
        Although petitioner tendered the affidavit of a general
contractor in its reply papers, such affidavit – even if properly
considered on the motion – addressed only the value of the
building situated on the property, rather than the value of the
property as a whole (see Real Property Tax Law § 502 [3]; Matter
of Johnson v Kelly, 45 AD3d 687, 688 [2007]; Matter of Young v
Town of Bedford, 37 AD3d 729, 730 [2007]; see generally Matter of
Shubert Org. v Tax Commn. of City of N.Y., 60 NY2d 93, 96-97
[1983]).
                              -5-                516152

or against the weight of the evidence" (Matter of Northern Pines
MHP, LLC v Board of Assessment Review of the Town of Milton, 72
AD3d at 1315-1316 [internal quotation marks and citations
omitted]; see 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]; Matter of General Elec. Co. v
Assessor of Town of Rotterdam, 54 AD3d 469, 471-472 [2008], lv
denied 11 NY3d 711 [2008]).

      Here, both appraisers utilized the sales comparison
approach in arriving at a value for the subject property based
upon its highest and best use as vacant land in transition to
retail development. Petitioner's appraiser placed the property's
fair market value at $1.3 million for the 2008 tax year and $1.4
million for the 2009 tax year, while respondents' appraiser
valued the property at $3.5 million for both years. In rejecting
petitioner's appraisal as not being an accurate assessment of the
property's fair market value, Supreme Court specifically relied
upon the recent sale of the property as the best indicator of
value. It is well settled that "[t]he best evidence of value
. . . 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
[1992]; see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack,
92 NY2d at 189; W.T. Grant Co. v Srogi, 52 NY2d 496, 511 [1981];
Matter of Rite Aid of N.Y. No. 4928 v Assessor of Town of
Colonie, 58 AD3d 963, 966 [2009], lv denied 12 NY3d 709 [2009]).
Although petitioner's appraiser testified that he did not rely
upon the recent sale of the subject property as a comparable
because he believed that other factors affected the sale price,
his report is devoid of any reference to or analysis of such
factors (see 22 NYCRR 202.59 [g] [2]), and Supreme Court rejected
as speculative the testimony that other considerations affected
the actual purchase price of the transaction. Respondents'
appraiser, on the other hand, utilized the recent sale of the
subject property in his analysis and concluded that the $3.5
million purchase price best reflected the property's fair market
value, emphasizing that the additional three sales he analyzed
and compared were consistent with his valuation (see Matter of
Rite Aid Corp. v Otis, 102 AD3d at 127; Matter of Brooks Drugs,
Inc. v Board of Assessors of City of Schenectady, 51 AD3d 1094,
                              -6-                  516152

1095 [2008], lv denied 11 NY3d 710 [2008]). According
appropriate deference to Supreme Court's resolution of the
credibility disputes generated by the parties' conflicting expert
opinions, we find that the court's decision to credit the
findings and conclusions set forth in respondents' appraisal was
not against the weight of the evidence (see Matter of Regency
Realty Assoc., LLC v Board of Assessment Review of the Town of
Malta, 75 AD3d 950, 952 [2010]; Matter of Northern Pines MHP, LLC
v Board of Assessment Review of the Town of Milton, 72 AD3d at
1316-1317; Matter of Ace Hardware Corp. v Little, 63 AD3d 1345,
1348 [2009]; Matter of Brooks Drugs, Inc. v Board of Assessors of
City of Schenectady, 51 AD3d at 1095).

      In light of our conclusion, we need not address SCCSD's
alternative arguments in support of affirmance.

     Stein, Garry, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
