In the Matter of JOHN L. WESLOWSKI et al., Respondents,
ASSESSOR OF THE CITY OF SCHENECTADY et al., Appellants.
Calendar Date: June 9, 2017
G. Falotico, Corporation Counsel, Schenectady (Ashlynn R.
Savarese of counsel), for appellants.
L. Weslowski, Schenectady, respondent pro se, and for Charles
J. Richardson, respondent.
Before: McCarthy, J.P., Garry, Egan Jr., Devine and Clark,
MEMORANDUM AND ORDER
(1) from an order of the Supreme Court (Buchanan, J.),
entered August 22, 2016 in Schenectady County, which, in a
proceeding pursuant to RPTL article 7, granted
petitioners' motion for summary judgment, and (2) from
the judgment entered thereon.
are the owners of a single-family dwelling located in the
City of Schenectady, Schenectady County. In June 2011, the
previous owners listed the subject property for sale at the
price of $149, 000; one year later, as it had not sold, they
reduced the offering price to $110, 000. In June 2013,
petitioners made an offer to purchase for the sum of $103,
000, which was accepted. Approximately two weeks later,
respondents determined that the full market value of the
subject property was $126, 829, and the total assessed value
of the subject property was $156, 000. Petitioners paid the
corresponding property taxes based upon this assessment and
thereafter commenced this proceeding pursuant to RPTL article
7, seeking a reduction upon the ground that the property was
overvalued. In June 2016, petitioners moved for summary
judgment seeking to reduce the tax assessment, which
respondents opposed. Supreme Court granted summary judgment
to petitioners, ordering a corresponding reduction of the
assessment, among other things. Respondents appeal.
RPTL article 7 tax certiorari proceeding, "a rebuttable
presumption of validity attaches to the valuation of property
made by the taxing authority" (Matter of Board of
Mgrs. of French Oaks Condominium v Town of Amherst, 23
N.Y.3d 168, 174-175  [internal quotation marks and
citations omitted]). Petitioners thus bore the initial burden
of presenting substantial evidence to demonstrate that the
subject property was overvalued (see id.). This
minimal threshold is met by "demonstrat[ing] the
existence of a valid and credible dispute regarding
valuation" based on "sound theory and objective
data" (Matter of FMC Corp. [Peroxygen Chems. Div.] v
Unmack, 92 N.Y.2d 179, 188  [internal quotation
marks and citation omitted]; see Matter of Gran Dev., LLC
v Town of Davenport Bd. of Assessors, 124 A.D.3d 1042,
1044 ). It is well established that evidence of a
recent sale of the property is a highly reliable measure of
value (see Matter of FMC Corp. [Peroxygen Chems. Div.] v
Unmack, 92 N.Y.2d at 189; Matter of Ulster Bus.
Complex v Town of Ulster, 293 A.D.2d 936, 938 ).
Indeed, a sale in an "arm's length transaction"
that is not "explained away as abnormal in any
fashion" is the very best form of evidence (W.T.
Grant Co. v Srogi, 52 N.Y.2d 496, 511 ; see
Matter of Allied Corp. v Town of Camillus, 80 N.Y.2d
351, 356 ).
petitioners presented the affidavit of the associate real
estate broker who had been engaged to sell the subject
property, together with their own affidavits describing the
underlying transactions. From June 2011 through May 2013, the
subject property had been continuously, publicly and widely
advertised for sale on a multiple listing service throughout
the Capital Region. Flyers were distributed at the
broker's office and during open houses and showings. By
May 2012, there had been more than 30 unsuccessful showings
of the subject property, which prompted the initial reduction
of the sale price to $110, 000 in June 2012. Petitioners
toured the property with the broker during an open house
thereafter, and then met with the broker in May 2013 to
execute their purchase offer. Two weeks later, respondents
prepared their estimate of the market value of the subject
property, which was significantly higher than the purchase
Court held that one can "scarcely envision a better
indicator of value than the price established within two
weeks of the assessed valuation date in an arm's[ ]length
sale of a property that was publicly listed for sale for a
period of two years." We agree, finding that
petitioners' evidence was certainly adequate to rebut the
presumption of validity and also to meet their burden upon
the summary judgment motion (see Matter of Stock v
Baumgarten, 211 A.D.2d 1008, 1010 ). Respondents
offered no evidence that suggests or reveals that the
arm's length transaction by which petitioners purchased
the subject property was in any manner abnormal. Review of
the record reveals that the reduction in the asking price was
the natural product of the failure to sell the subject
property for a period of two years, and respondents'
assertions to the contrary are mere speculation. Respondents
further rely upon the affidavit of a licensed real estate
appraiser, who explains that he arrived at the property
valuation by using the comparable sales method. However, as
this appraiser was unable to inspect the interior or exterior
of the subject property, his report merely averaged the sales
prices of similar nearby homes; he "was unable to make
reliable adjustments to the comparable sales, " as the
method requires (see Matter of Peck v Obenhoff, 84
A.D.2d 633, 634 ). As further adjustments in the
valuation might be required, he concluded that "[his]
analysis is subject to change."
submissions thus failed to provide a "fair and realistic
value" of the subject property (W.T. Grant Co. v
Srogi, 52 N.Y.2d at 512-513 [internal quotations marks
and citations omitted]) and were conclusory and speculative,
such that they were insufficient to defeat summary judgment
(see Stonehill Capital Mgt. LLC v Bank of the W., 28
N.Y.3d 439, 448 ; Robinson v Robinson, 133
A.D.3d 1185, 1188 ; Matter of Heinemeyer v State of
N.Y. Power Auth., 229 A.D.2d 841, 843 , lv
denied 89 N.Y.2d 801');">89 N.Y.2d 801 ). Finally, to the extent
that respondents also rely on the exhibits relative to the
five similar properties referenced by the appraiser, those
exhibits were not authenticated and are thus not tendered in
admissible form (see Bergstrom v McChesney, 92
A.D.3d 1125, 1126-1127 ). Accordingly, as respondents
failed to raise a triable issue of fact, Supreme Court
properly granted summary judgment to petitioners.
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.
that the order and judgment are ...