McCrory Corp. v. Gingold

• Decision Date: 15 April 1976
• Docket Number: Nos. 1,s. 1
• Citation: 382 N.Y.S.2d 407,52 A.D.2d 23
• Parties: McCRORY CORPORATION, Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the City of Syracuse for the years 1964 true 1969 and Robert Z. Srogi, as Commissioner for the year 1970, Appellants (two cases). F. W. WOOLWORTH CO., Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the City of Syracuse for the years 1964 thru 1969 and Robert Z. Srogi, as Commissioner for the year 1970, Appellants. BOND STORES NEW YORK CORP., Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the City of Syracuse for the years 1964 thru 1969 and Robert Z. Srogi, as Commissioner for the year 1970, Appellants. W. T. GRANT COMPANY, Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the City of Syracuse for the years 1964 thru 1969 and Robert Z. Srogi, as Commissioner for the year 1970, Appellants. (And Three Other Proceedings.)
• Court: New York Supreme Court — Appellate Division

Page 407

382 N.Y.S.2d 407

52 A.D.2d 23

McCRORY CORPORATION, Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the

City of Syracuse for the years 1964 true 1969 and

Robert Z. Srogi, as Commissioner for the

year 1970, Appellants (two cases).

F. W. WOOLWORTH CO., Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the

City of Syracuse for the years 1964 thru 1969 and

Robert Z. Srogi, as Commissioner for the

year 1970, Appellants.

BOND STORES NEW YORK CORP., Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the

City of Syracuse for the years 1964 thru 1969 and

Robert Z. Srogi, as Commissioner for the

year 1970, Appellants.

W. T. GRANT COMPANY, Respondent, v. Benjamin M. GINGOLD, as Commissioner of Assessment of the

City of Syracuse for the years 1964 thru 1969 and Robert Z.

Srogi, as Commissioner for the year 1970, Appellants. (And

Three Other Proceedings.)

Appeal Nos. 1 through 5.

Supreme Court, Appellate Division, Fourth Department.

April 15, 1976.

Edward P. Kearse, Corp. Counsel, Syracuse, for appellants (Thomas J. Lowery, Jr., Special Counsel for the City of Syracuse, of counsel).

Smith, Sovik, Terry, Kendrick, McAuliffe & Schwarzer, Syracuse, for respondents (Franklin J. Schwarzer, Syracuse, of counsel).

Before MOULE, J.P., and MAHONEY, DILLON, GOLDMAN and WITMER, JJ.

OPINION

GOLDMAN, Justice.

Respondents-appellants, Benjamin M. Gingold and Robert Z. Srogi, Commissioners of Assessment of the City of Syracuse during the years of 1964 through 1970, appeal from four judgments which reduced the tax assessments of petitioners-appellees, McCrory Corporation, F. W. Woolworth Co., Bond Stores New York Corp. and W. T. Grant Company for the years of 1964 through 1970. Prior to the argument of these appeals the City and W. T. Grant entered into a settlement agreement and the judgment in that matter is not involved in these appeals. Appellant City also appeals from an order and judgment of the Supreme Court of Onondaga County which awarded petitioners $13,692.60 for attorneys' fees and disbursements and $20,649.28 as reimbursement for expenses, pursuant to section 716 of the Real Property Tax Law.

In addition to the instant cases, several other proceedings have been instituted challenging assessments on property in the downtown business core of the City of Syracuse. These appeals are the second of these proceedings which have been argued before us dealing with assessment on parcels of property in the City of Syracuse for the years 1964 through 1970. The first appeal reached our court in 1973 (Ed Guth Realty, Inc. v. Gingold, 41 A.D.2d 479, 344 N.Y.S.2d 270, affd. 34 N.Y.2d 440, 358 N.Y.S.2d 367, 315 N.E.2d 441). Mr. Justice Simons, writing for a unanimous court, modified the findings and judgment of Special Term. The same Special Term justice who rendered the judgment in Guth presided at the hearings on the petitions in the instant appeals. The legal issues are the same in both appears and were disposed of in Guth.

There are two parts to the cases at bar: the first is to establish the proper equalization rates for this tax roll for the years in question; the second is to determine the full market value of petitioners' properties against which the equalization rates will apply.

All of the evidence received in the Guth case relating to the equalization ratios for the City of Syracuse during the years in question was incorporated in this record by stipulation of the parties. In addition, as at the Guth proceedings, appraisal testimony as to fair market value and taxes assessed against ten selected City parcels (five parcels selected by each side) was received in order to establish the proper assessment ratios to be applied to petitioners' properties for the years 1964 through 1970. In both Guth and the instant cases Special Term relied solely on the ratios established by the State Board of Equalization for all the years involved and did not evaluate the testimony concerning the ten selected parcels. Thus, Special Term found the same assessment ratios in Guth and in the instant cases. As we held in Guth, placing sole reliance on the State equalization rate for the years 1964 through 1969 was improper (former section 720, subd. 3 of the Real Property Tax Law, amd. L.1969, ch. 302, § 1, eff. April 27, 1969; Ed Guth Realty, Inc. V. Gingold, supra). We must, therefore, revise the rates adopted by Special Term for the years 1964 through 1969. As to 1970, a finding based wholly on the State equalization rate was proper (Ed Guth Realty, Inc. v. Gingold, supra, 41 A.D.2d at 482, 344 N.Y.S.2d at 273, affd. 34 N.Y.2d at 450, 358 N.Y.S.2d at 372, 315 N.E.2d at 445).

Petitioners-respondents urge that all the assessment ratios found by our court in the Guth case should be applied in the instant cases; that the City Tax Commission who was a party in Guth should be collaterally estopped from relitigating the same issues as to ratios raised and settled in Guth. We agree with petitioners that the equalization ratios determined with specificity and clarity in Mr. Justice Simons' opinion in Guth should and do control in the determination of the equalization ratios in the cases at bar.

The proceedings that we are reviewing are for the same tax years in the same business area as in the Guth case. The Guth property in the 300 block of South Salina Street is on the same tax roll as the assessments in the instant cases. The defendants are the same, the years in question are identical and all other factual and legal issues as to assessment ratios are the same. The defendants had full and fair opportunity to be heard in the Guth proceedings and the issues as to the assessment ratios having been determined should be applied in the instant proceedings. Collateral estoppel is indeed the appropriate method of disposing of the equalization issue.

It is now a recognized principle that where a party (in the instant case, the City) has had a full opportunity to litigate a particular issue it cannot reasonably demand and be given a second opportunity. The test of whether the City should be estopped is succinctly expressed in Schwartz v. Public Administrator, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725, 729: 'New York Law has now reached the point where there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.' (See also B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195; Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97; cf. Anderson v. Snyder Tank Corp., 44 A.D.2d 761, 354 N.Y.S.2d 241.)

The fact that section 720, subd. 3 of the Real Property Tax Law, prior to the 1969 amendment, provided that the parties should use selected parcels in approving assessment ratios should not preclude the general defenses, such as collateral estoppel or Res judicata, from being raised. Interestingly, petitioners offered to use the same select parcels as were used in Guth. Although the City refused this offer, two of the select parcels in Guth were used in the instant proceedings. Our examination of the Guth record convinces us that the Schwartz v. Public Administrator, supra, requirement that 'there must have been a full and fair opportunity' afforded to contest the decision was fullfilled in a most comprehensive manner in Guth. As stated by petitioners, there were in excess of 2,640 pages of testimony and some 165 exhibits. Well qualified experts, including the Chief Appraiser of the New York State Board of Equalization and Assessment and distinguished, experienced university professors, gave constructive testimony in Guth which enabled our court to make the findings we reached on the issue of the ratios for the years in question. The same appraisal experts testified in Guth as in these proceedings.

It is now well recognized that '(t)he principle of judicial or collateral estoppel embodies a policy which the courts have deemed necessary for the maintenance of a 'prompt and nonrepetitious judicial system" (Huston v. DeLeonardis, 44 A.D.2d 110, 113, 353 N.Y.S.2d 771, 774). We hold that the application of this doctrine is determinative of the issue of assessment ratios. We note that, even were we not to apply the doctrine of collateral estoppel, our results relating to assessment ratios would still conform substantially to those reached in Guth.

As stated above, until the 1969 amendment to the Real Property Tax Law, § 720, subd. 3, use of the state equalization rate as the sole basis of proving inequality of assessments was improper. But, while the state euqlization rate established for the roll containing the assessments under review herein was insufficient standing alone to sustain a finding of inequality for the years 1964 through 1969, it was competent evidence to be considered along with the evidence of selected parcels (former Real Property Tax Law, § 720, subd. 3, L.1961, ch. 942; Matter of O'Brien v. Assessor, 20 N.Y.2d 587, 595--596, 285 N.Y.S.2d 843, 848--850, 232 N.E.2d 844, 848--849). Indeed, there is substantial evidence in the record to support a finding that the random or 'probability' sampling techniques employed by the State Board of Equalization and Assessment are superior to a parcel selection method wherein either side will, naturally, tend to choose parcels that represent extremes of the assessment ratio scale in order to support its position. See also, Inequality in Real Property Tax Review, 19 Buff.L.Rev., 565, 571.

We have analyzed the evidence as to the ten selected parcels and have made findings as to the ratios produced by that method. Considering these ratios, and giving weight to those rates established by the State Board as well, we...