Tax Court: No Harm, No Foul
In a recent appeal to the Tax Court from the judgment of the Monmouth County Board of Taxation, which affirmed the 2011 tax assessment on a residential property, the Tax Court denied the defendant municipality’s motion to dismiss the complaint, or in the alternative, to bar the testimony of plaintiff’s expert and of comparable sales.
The basis for the defendant’s motion in Martin v. Avon-By-The-Sea Borough, was that plaintiff failed to provide defendant with an expert’s report as to the value of the subject property, or with comparable sales. In opposing the motion the plaintiff’s attorney provided a certification stating that the appraisal had been provided to the defendant in connection the proceeding before the County Tax Board. The defendant argued that simply because the report had been provided during the early proceeding does not relieve plaintiff of its obligation to comply with the Court Rules regarding the exchange of expert reports or comparable sales data intended to be relied upon at trial. Rule 8:6-1(b)(ii) requires appraisal reports or comparable sales date to be exchanged no later than 20 days before the trial date.
Tax Court Judge Gail Menyuk found that the defendant was correct in its assertion that the provision of the appraisal report during the County Board proceeding did not relieve plaintiff of its obligation to provide a report before the trial under the Court Rules. Judge Menyuk noted that the plaintiff could have obtained a new report and that the defendant is entitled to know what proofs the plaintiff intends to reply upon at trial. However, the judge found that since an appraisal at had been supplied and the trial date adjourned (at the defendant’s request), the defendant would have plaintiff’s report more than twenty days prior to the rescheduled trial date, thus curing any prejudice that would have been suffered by defendant by plaintiff’s initial failure to provide the report.
This decision raises the question of whether it was even necessary to resort to motion practice. As stated Judge Menyuk in a September 2011 letter opinion denying a motion to dismiss for failure to provide discovery, “much of the time spent on motion papers could more effectively and productively been spent on the telephone with opposing counsel.” In the Avon-by-the-Sea case, counsel for the plaintiff could have easily sent a letter to the defendant’s counsel stating its intent to rely on the previously provided report. Likewise, defendant’s counsel could have inquired as to the status of the report as the exchange date approached to determine whether the trial was likely to proceed.
