Mid-Island Shopping Plaza, Inc. v. Podeyn

• Decision Date: 11 July 1961
• Docket Number: MID-ISLAND
• Citation: 218 N.Y.S.2d 249,14 A.D.2d 571
• Parties: Application ofSHOPPING PLAZA, INC., Petitioner-Respondent-Appellant, v. Emil H. PODEYN and others, constituting the Board of Assessors of the County of Nassau, Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 249

218 N.Y.S.2d 249

14 A.D.2d 571

Application of MID-ISLAND SHOPPING PLAZA, INC. Petitioner-Respondent-Appellant, v. Emil H. PODEYN and others, constituting the Board of Assessors of the County of Nassau, Appellants-Respondents.

Supreme Court, Appellate Division, Second Department.

July 11, 1961.

J. Oakey McKnight, County Atty., Mineola, for appellants-respondents; James F. Niehoff, Mineola, of counsel.

Sprague, Stern, Aspland, Dwyer & Tobin, Mineola, for respondent-appellant; Henry Root Stern, Jr., Mineola, of counsel.

Before NOLAN, P. J., and UGHETTA, KLEINFELD, PETTE and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In consolidated proceedings against the Board of Assessors of Nassau County, under article 13 of the Tax Law (now Real Property Tax Law, art. 7), to review and reduce, on the ground of inequality, the tax assessments on petitioner's real property for the three tax years 1957-1958, 1958-1959 and 1959-1960, the parties cross appeal from an order of the Supreme Court, Nassau County, entered October 17, 1960, upon the court's decision, after a nonjury trial, which reduced such assessments. The Board of Assessors urges that the reductions were unwarranted petitioner contends that the reductions were insufficient and the assessments should be reduced further.

Order affirmed, without costs.

Since petitioner's claim of over-assessment was based solely on the ground of inequality, it was incumbent upon petitioner to establish the ratio between the true value and the assessed value of real property in the tax district (Wolf v. Assessors of Town of Hanover, 308 N.Y. 416, 421, 126 N.E.2d 537, 540).

To prove that ratio, petitioner relied exclusively upon evidence of actual sales during the tax years of a large number of parcels in the County of Nassau, which had been selected by their expert witness according to an allegedly scientically devised sampling method. The Board of Assessors attacks that method of proof, not because the sampling procedure as such was improper or inadequate to show the ratio, but on the ground that the applicable statutes (Tax Law, § 293; now Real Property Tax Law, § 720) require that the test parcels used to prove ratio must be selected either by mutual agreement of the parties or, if the parties fail to agree, by the court or referee upon application of either party.

With respect to that limitation on the method of selecting test parcels, it is our opinion that the statutes provide for an exception by permitting without restriction 'evidence as to actual sales of real property within' the tax district or assessing unit 'that occurred during the year in which the assessment under review was made' (Tax Law, § 293; now Real Property Tax Law, § 720; cf. People ex rel. Yaras v. Kinnaw, 303 N.Y. 224, 228, 101 N.E.2d 474, 475). The language of the statutes is without ambiguity and its meaning unequivocal. Hence, there is no justification for the interpretation of that plain language, urged by the Board, which would limit evidence of actual sales to those sales which might affect the test parcels selected by agreement or by the court (cf. McCluskey v. Cromwell, 11 N.Y. 593, 601-602; New Amsterdam Cas. Co. v. Stecker, 3 N.Y.2d 1, 6, 163 N.Y.S.2d 626, 629).

In any event, the Board is in no position to raise that question in this proceeding. The evidence of actual sales was introduced without objection, although no test parcels had been selected by the parties and no application had been made to the court for such a selection. Under such circumstances, the evidence with respect to actual sales was obviously introduced as direct proof on the issue of inequality, and the purpose of the receipt of such evidence must have been so understood.

The Board, also, is in no position to urge that the sales prices of the properties shown on petitioner's survey did not constitute the 'evidence as to actual sales' allowed by the statutes (Tax Law, § 293; now Real Property Tax Law, § 720). Those sales prices were established by the documentary stamps on the deeds, under a stipulation by the parties that 'the revenue stamps appearing on the deeds may be used as evidence of the sales price.' While the Board reserved its right to produce additional...