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TAX COURT OF NEW JERSEY 

 

Joshua D. Novin Court & Washington Streets 

 Judge P.O. Box 910 

 Morristown, New Jersey 07963-0910 

 Tel: (609) 815-2922, Ext. 54680 Fax: (973) 656-4305 

NOT FOR PUBLICATION WITHOUT THE APPROVAL 

OF THE TAX COURT COMMITTEE ON OPINIONS 

 September 5, 2017 

Mr. and Mrs. H. Scott Gurvey 

315 Highland Avenue 

Upper Montclair, New Jersey 07043 

Gary D. Gordon, Esq. 

Feinstein, Raiss, Kelin & Booker, LLC 

290 W. Mt. Pleasant Avenue, Suite 1340 

Livingston, New Jersey 07039 

Re: H. Scott Gurvey by Amy R. Gurvey, Esq. v. Montclair Township 

Docket Nos. 000339-2011 and 009992-2017 

Dear Mr. and Mrs. Gurvey and Mr. Gordon, 

This letter constitutes the court’s opinion with respect to plaintiffs’ motions: (1) seeking 

vacatur/reconsideration of portions of the court’s May 8, 2017 Order; (2) to admit facts into 

evidence; and (3) to consolidate plaintiffs’ 2011 tax appeal with plaintiffs’ 2017 tax appeal. 

 For the reasons outlined more fully herein, the court: denies plaintiffs’ motion seeking 

vacatur/reconsideration of portions of the court’s May 8, 2017 Order; grants, in part, and denies, 

in part, plaintiffs’ motion to admit facts into evidence; and reserves decision on plaintiffs’ motion 

to consolidate plaintiffs’ 2011 tax appeal with plaintiffs’ 2017 tax appeal, pending the outcome of 

a plenary hearing on the court’s subject-matter jurisdiction over plaintiffs’ 2017 tax appeal. The 

court further instructs plaintiffs to furnish defendant with copies of all environmental tests, reports, 

analysis, and documents related to the subject property (as defined herein), and referenced in 
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plaintiffs’ request for admissions. Finally, the court directs defendant to furnish plaintiffs, as set 

forth herein, with amended answers to certain request for admissions. 

I. Factual Findings and Procedural History 

This matter has a lengthy procedural history, chronicled in the court’s May 8, 2017 letter 

opinion. Plaintiffs, H. Scott Gurvey and Amy R. Gurvey (“plaintiffs”) are the owners of the real 

property and single-family dwelling located at 315 Highland Avenue, in the Township of 

Montclair, County of Essex, and State of New Jersey (the “subject property”). The subject 

property is designated Block 705, Lot 1 on the municipal tax map of Montclair Township 

(“defendant”).

 On June 28, 2016, plaintiffs filed motions with the court seeking: to compel discovery; to 

admit facts into evidence; and to find defendant in contempt of court (the “June 28, 2016 

motions”).

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 On March 17, 2017, plaintiffs submitted additional motions to the court seeking: entry of 

a writ of mandamus; leave of court to file an amended complaint; and to vacate the court’s 

December 14, 2011 order, enter reassessment effective December 14, 2011, and for an injunction 

(the “March 17, 2017 motions”). 

 On May 8, 2017, the court issued a letter opinion and entered an order denying plaintiffs’ 

motions: (1) to compel discovery; (2) to admit facts into evidence; (3) to find defendant in 

contempt of court; (4) for entry of a writ of mandamus; (5) for leave of court to file an amended 

complaint; and (6) to vacate the court’s December 14, 2011 order, enter reassessment effective 

December 14, 2011, and for an injunction. However, the court granted leave, under R. 8:6-1(a)(4), 

directing defendant to: (i) furnish plaintiffs with answers to the ‘Tax Court’s Standard 

 

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 Disposition of plaintiffs’ June 28, 2016 motions was stayed pending plaintiffs’ motion for leave to file an interlocutory appeal 

with the Appellate Division of the Superior Court of New Jersey.
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Interrogatories to be Served on Municipality’ within sixty (60) days of the date thereof; and (ii) 

furnish responses to plaintiffs’ April 8, 2016 requests for admissions within thirty (30) days of the 

date thereof. The court further directed plaintiffs to furnish defendant, within sixty (60) days of 

the date thereof, with copies of any environmental tests, studies, analysis and reports for the subject 

property that had not been previously furnished. 

 On May 31, 2017, plaintiffs faxed a letter placing the court on “notice” that they would be 

“moving for an order vacating portions of the court’s [May 8, 2017] Order, to renew and reargue 

and to further amend their complaint. . .”

 On July 17, 2017, plaintiffs submitted motions seeking: (1) vacatur/reconsideration of 

portions of the court’s May 8, 2017 Order; (2) to admit facts into evidence; and (3) to consolidate 

plaintiffs’ 2011 tax appeal with plaintiffs’ 2017 tax appeal. Defendant submitted timely opposition 

to these motions. 

 Oral argument on plaintiffs’ motions was conducted on August 18, 2017. Following oral 

argument, the court requested plaintiffs furnish the court with evidence that the documents 

referenced in plaintiffs’ request for admissions were supplied to defendant. In addition, the court 

requested defendant furnish the court with a log sheet of the environmental documents and reports 

received from plaintiffs. Plaintiffs and defendant were to submit such evidence and document log 

no later than August 25, 2017. 

 On August 22, 2017, defendant’s counsel submitted a list of documents in their possession

received from plaintiffs relative to the subject property. 

 Plaintiffs made no timely submission following oral argument. 
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II. Conclusions of Law 

A. Motion for Vacatur/Reconsideration 

Plaintiffs’ March 17, 2017 motions sought entry of an order “[v]acating the [December 

14,] 2011 order of [Judge] Mala Narayanan that plaintiff could not recover refunds plus interest 

from defendant for 2011 based on misapplication of NJ’s Freeze Act.”

 On May 8, 2017, the court issued a letter opinion and entered an order denying the relief 

sought by plaintiffs. The court’s May 8, 2017 letter opinion carefully detailed the court’s factual 

findings and legal conclusions. 

Plaintiffs’ instant motion now seeks entry of an order “granting vacatur/reconsideration of 

[certain] portions of Tax Court’s May 18, [sic] 2017 decision and order . . .” Specifically, 

plaintiffs’ motion demands that the court: (i) “enter judgment in favor of plaintiffs for tax refunds 

plus interest due for all of 2011”; (ii) “find that the October 1, 2011 $0 valuation should have been 

carried over for 2012”; and (iii) “vacate those parts of the court’s May [8,] 2017 [Order] 

inconsistent with OPRA documents produced by the Essex County counsel in June, 2017.” 

Additionally, for the first time during oral argument, plaintiffs advanced two new arguments. First, 

plaintiffs maintained that they also seek entry of an order vacating those portions of Judge 

Narayanan’s December 14, 2011 Order concluding that the court lacked subject matter jurisdiction 

over plaintiffs’ tax appeal for the 2009 tax year.2 Second, plaintiffs asserted that, although the 

2012 and 2013 tax year memorandum of judgments issued by the Essex County Board of Taxation 

correctly identified plaintiffs’ mailing address, and contained mailing dates of ‘10/26/12’ and 

‘7/26/13,’ plaintiffs never received any of these judgments. Therefore, plaintiffs maintain that 

 

2

 After a lengthy dialogue, plaintiffs seemingly acknowledged that they did not file a tax appeal challenging the 

2010 tax year local property tax assessment on the subject property. 
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they should be permitted to challenge the 2012 and 2013 Essex County Board of Taxation 

memorandum of judgments. 

A motion for rehearing or reconsideration is governed by R. 4:49-2. The rule 

unambiguously provides, in part, that: 

a motion for rehearing or reconsideration seeking to alter or amend 

a judgment or order shall be served not later than 20 days after 

service of the judgment or order upon all parties by the party 

obtaining it. 

[R. 4:49-2.] 

The rule further requires the motion to “state with specificity the basis on which it is made, 

including a statement of the matters or controlling decisions which counsel believes the court has 

overlooked or as to which it has erred.” Ibid.

 A motion for rehearing or reconsideration is granted sparingly. Thus, such a motion will 

be granted “only for those cases which fall into that narrow corridor in which either: (1) the court 

has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious 

that the court either did not consider, or failed to appreciate the significance of probative, 

competent evidence . . .” D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Despite 

these narrow parameters, a court may “in the interest of justice” consider any “evidence” that the 

litigant claims is “new or additional . . . which it could not have provided” during the initial hearing. 

Id. at 401. However, consideration of such evidence is in the court’s “sound discretion.” Ibid. 

“[R]epetitive bites at the apple” should not be tolerated or “the core will swiftly sour.” Ibid. 

Therefore, a court must “be sensitive and scrupulous in its analysis of the issues in a motion for 

reconsideration.” Id. at 402. 

 Here, the court concludes that plaintiffs’ motion for vacatur/reconsideration is untimely, 

under R. 4:49-2. As stated above, on May 8, 2017 the court issued a letter opinion and Order 
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denying plaintiffs’ motion to vacate the court’s December 14, 2011 Order. Copies of the court’s 

letter opinion and order were electronically mailed to plaintiffs on May 8, 2017, and 

simultaneously therewith, hard copies were forwarded to plaintiffs by regular mail. Affording 

plaintiffs all reasonable and legitimate inferences which can be deduced from the evidence, the 

latest date by which plaintiffs’ motion for reconsideration was required to be filed was Wednesday, 

May 31, 2017. See R. 1:3-3. 

 Although plaintiffs faxed a letter to the court on May 31, 2017 placing the court on “notice” 

that they intended to submit a motion for reconsideration, no motion for reconsideration was served 

and filed with the court until July 17, 2017, approximately seventy (70) days following entry of 

the court’s Order. The court’s strict adherence to time periods afforded litigants under R. 4:49-2 

is necessary to ensure a timely disposition of matters and an element of finality to the court’s 

decisions. Plaintiffs’ May 31, 2017 letter failed to satisfy the prerequisites and fundamental 

submission requirements for a motion for reconsideration under R. 4:49-2. 

 Moreover, any attempt by plaintiffs to expand the time allotted under R. 4:49-2 for 

submission of a motion for reconsideration is not compelling. It is well-settled that “an individual 

is chargeable with knowledge of the law” and is expected to exercise a reasonable degree of 

prudence to ensure compliance with statutory deadlines and court rules. Mayfair Holding Corp. v. 

Township of North Bergen, 4 N.J. Tax 38 (Tax 1982) (citing Gilbralter Factors Corp. v. Slapo, 41 

N.J. Super. 381 (App. Div. 1956), aff'd 23 N.J. 459 (1957)). Here, plaintiffs, by pursuing the 

instant litigation as self-represented parties, bore an obligation to acquaint themselves with the 

laws of this state and the court rules, including those applicable to motions for reconsideration. 

Therefore, plaintiffs are charged with the responsibility to adhere to the laws and the rules of court. 

Plaintiffs’ failure to timely file a motion for reconsideration of this court’s May 8, 2017 Order and 
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letter opinion is the result of plaintiffs’ own conduct and inaction. By failing to timely submit said 

motion for reconsideration, plaintiffs have not complied with the requirements of R. 4:49-2 and 

thus, their motion for reconsideration must be denied as untimely. 

 Notwithstanding plaintiffs’ failure to comply with the requirements of R. 4:49-2, the court 

finds a lack of support for the relief being sought by plaintiffs. Plaintiffs argue that new evidence 

was discovered following entry of the court’s May 8, 2017 Order, and that this new evidence 

warrants relief under R. 4:49-2. Stated simply, plaintiffs contend that the “Essex County Counsel’s 

OPRA documents just produced, do not include a Tax Board Judgment for 2010,” therefore 

plaintiffs “got no Judgment in 2010 from which to appeal, making [the] Tax Court’s August 2011 

hearing a waste of Plaintiffs’ time and valuable resources.” Additionally, plaintiffs charge that the 

court, “now having before it another current report finding 3% and 4% chrysotile asbestos levels 

in the original plaster ceilings, was required to enter judgment in favor of plaintiffs for tax refunds 

plus interest due for all of 2011.”

 In response, defendant characterizes plaintiffs’ motion for reconsideration as an effort by 

plaintiffs to re-argue the merits of their former motion for summary judgment. Defendant notes 

that “[i]t seems that in this motion the plaintiffs are again seeking a summary judgment from the 

court with respect to the valuation of their home,” and that “[t]his issue has been raised 

interminably and has been decided.” Defendant asserts that plaintiffs are “seeking the Township 

to issue refunds based upon that valuation and are seeking sanctions against the Township for 

issuing ‘fraudulent increases’ in their taxes,” when “[a]ll the Township of Montclair did was to tax

the plaintiffs based upon the assessed valuation of the property.”

 Here, plaintiffs’ motion fails to establish any basis warranting relief under R. 4:49-2. 

Plaintiffs have not demonstrated that the court’s May 8, 2017 Order was based upon a palpably 
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incorrect or irrational basis, or that the court did not consider, or failed to appreciate the 

significance of the probative and competent evidence presented. In fact, the record discloses that 

plaintiffs and defendant submitted extensive legal briefs to the court and the court considered the 

parties’ arguments and legal positions before rendering its opinion and issuing its order. 

 In addition, a review of the alleged newly discovered evidence does not lead the court to 

conclude that Judge Narayanan’s December 14, 2011 Order, was: (i) entered by mistake, 

inadvertence, surprise, or excusable neglect; (ii) fraud, misrepresentation, or other misconduct of 

an adverse party; (iii) is void; or (iv) has been satisfied, released or discharged. See R. 4:50-1. 

 Plaintiffs’ motion raises substantially the same arguments as were raised before Judge 

Narayanan in 2011, when moving for reconsideration of her December 14, 2011 Order. Judge 

Narayanan’s comprehensive February 23, 2012 letter opinion addressed her basis for consideration 

of “the court’s subject-matter jurisdiction for tax years 2009 and 2010. . .” and observed that the 

parties “fully briefed the jurisdiction issue for tax years 2009 and 2010.” After conducting a 

plenary hearing, Judge Narayanan concluded that despite plaintiffs’ allegations, the court lacked 

subject matter jurisdiction over plaintiffs’ tax appeals for the 2009 and 2010 tax years. Nothing 

offered by plaintiffs in support of the instant motion for reconsideration leads this court to conclude 

that the alleged newly discovered evidence would alter the court’s December 14, 2011 Order. R. 

4:50-1. 

 Moreover, plaintiffs raised allegations – for the first time during oral argument in the 

instant motion – that were never advanced in either their June 28, 2016 motions or March 17, 2017 

motions and, thus, are not properly before this court on a motion for reconsideration. Specifically, 

plaintiffs’ allege that they did not receive copies of the Essex County Board of Taxation’s 

memorandum of judgments for the 2012 and 2013 tax years. However, in neither their June 28, 
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2016 motions, nor March 17, 2017 motions, did plaintiffs raise the issue of the court’s subjectmatter jurisdiction over the tax assessments for the subject property for the 2012 and 2013 tax 

years. In addition, the court’s May 8, 2017 Order and letter opinion does address the court’s 

subject-matter jurisdiction for the 2012 or 2013 tax years. Thus, plaintiffs’ efforts to address, in a 

motion for reconsideration, issues not raised in the initial March 17, 2017 motions, is misplaced. 

Further, plaintiffs’ allege that, because they did not receive the 2012 and 2013 tax year 

Essex County Board of Taxation memorandum of judgments, the court’s December 14, 2011 

Order was in error. However, Judge Narayanan’s December 14, 2011 Order concluded only that 

“this court does not have subject-matter jurisdiction over plaintiffs’ appeals for tax years 2009 and 

2010” and that “this court does have subject-matter jurisdiction to hear plaintiffs’ complaint for 

tax year 2011.” Judge Narayanan agreed with plaintiffs’ assertion that the court possessed subjectmatter jurisdiction over the 2011 tax year appeal, but expressed no opinion on the court’s subjectmatter jurisdiction for the 2012 and 2013 tax years. 

 In sum, plaintiffs’ motion for reconsideration simply repeats and reiterates the arguments 

that have already been proffered to and considered by the court in denying their motion to vacate 

Judge Narayanan’s December 14, 2011 Order. Plaintiffs offer this court no “controlling decisions 

which [they] believe[] the court has overlooked or as to which it has erred” under R. 4:49-2. 

Reconsideration is not to be manipulated as a means to “reargue a motion.” Capital Fin. Co. of 

Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 

521 (2008). Plaintiffs’ disagreement with this court’s May 8, 2017 decision is not grounds for this 

court to reverse itself via reconsideration. “A litigant should not seek reconsideration merely 

because of dissatisfaction with a decision of the Court. Rather, the preferred course to be followed 

when one is disappointed with a judicial determination is to seek relief by means of either a motion 
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for leave to appeal or, if the Order is final, by a notice of appeal.” D’Atria, supra, 242 N.J. Super., 

at 401. 

 Accordingly, for the above stated reasons, plaintiffs’ motion for vacatur/reconsideration of 

the court’s May 8, 2017 Order is denied. 

B. Motion to Admit Facts into Evidence 

R. 4:22-1 permits any party to serve upon any other party a “written request for the 

admission. . . of the truth of any matters of fact within the scope of R. 4:10-2 . . . [c]opies of 

documents shall be served with the request unless they have been or are otherwise furnished or 

made available for inspection and copying.” R. 4:22-1. A request for admission shall be deemed 

admitted unless the receiving party, within thirty days following service of the request, furnishes 

an answer or objection to the request, signed by the party or by the party’s attorney. R. 4:22-1. 

“The purpose of a request for admissions is to establish matters to be true for purposes of 

trial when there is not a real controversy concerning them yet their proof may be difficult or 

expensive.” Essex Bank v. Capital Resources Corp., 179 N.J. Super. 523, 532 (App. Div. 1981), 

cert. denied, 88 N.J. 495 (1981). A request for admissions is intended to serve “the relatively 

limited purpose of eliminating the necessity of proving facts which are or should be 

uncontroverted.” Ibid. (citing Van Langen v. Chadwick, 173 N.J. Super. 517, 522 (Law Div. 

1980)). However, a request for admissions is not a discovery device designed: 

to ascertain relevant facts, but rather to ascertain the adversary’s 

position with respect to these facts, with the aim of facilitating the 

trial by weeding out items of fact and proof over which there is not 

dispute, but which are often difficult and expensive to establish by 

competent evidence, and thereby expedite the trial, diminish its cost, 

and focus the attention of the parties upon the matters in genuine 

controversy. 

 
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[Hunter v. Erie R.R. Co., 43 N.J. Super. 226, 231 (Law Div. 1956) 

(citing Schnitzer and Wildstein, New Jersey Rules Service, AIV727).] 

 Thus, a request for admissions is not a means to attempt to establish liability, or to relieve 

the demanding party of its trial proofs. A request for admissions “should not be used in an attempt 

to establish the ultimate fact in issue.” Essex Bank, supra, 179 N.J. Super. at 533. Nor are request 

for admissions intended to elicit opinion responses. Van Langen v. Chadwick, 173 N.J. Super. 517, 

522 (Law Div. 1980). A request for admissions can be an effective and important tool in 

establishing underlying factual matters, over which there is no conflict or disagreement. 

 When the demanding party deems the appropriateness of a response inadequate, they “may 

move to determine the sufficiency of the answers or objections. Unless the court determines that 

an objection is justified, it shall order that an answer be served. If the court determines that an 

answer does not comply with the requirements of this rule, it may order that the matter is admitted 

or that an amended answer be served.” R. 4:22-1. 

 Although plaintiffs caption their motion as one seeking to “admit facts into evidence,” the 

body of plaintiffs’ certification and argument challenges the timeliness and sufficiency of 

defendant’s responses. Plaintiffs charge that they did not receive defendant’s responses to the 

request for admissions until June 14, 2017, more than thirty days after the May 8, 2017 deadline 

ordered by the court. Moreover, plaintiffs assert that “defendant’s responses to the requests to 

admit are deficient, [and] do not comply with the letter or intent of R. 4:22-1. . .” Plaintiffs 

maintain that they furnished defendant with twenty groupings of documentary information in this 

matter, enabling defendant to timely respond to the request for admissions. Finally, plaintiffs argue 

that they “informed defendant that it’s [sic] answers to the questions to admit were both deficient 

in substance and not timely as served.” Thus, plaintiffs request the court enter an order admitting 
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“the facts listed in the Appendix attached to this order. . .” The appendix to plaintiffs’ proposed 

form of order contains a restatement of plaintiffs’ April 8, 2016 requests for admissions.

In response, defendant’s counsel asserts that he “reviewed the entirety of the file supplied 

to this office by prior counsel, and virtually none of the documents referenced in Paragraph 17 of 

the plaintiffs’ declaration are included.” Defendant’s counsel asserts that since he was “not privy 

to those documents, it is impossible to respond to the Request for Admissions other than to 

indicate, which we did, that that information is within the knowledge of the plaintiffs and the 

Township of Montclair is not in the position to admit or deny such requests.”

 Here the issues facing the court are what is the value of the subject property as of the 

October 1, 2010 valuation date, whether the subject property was contaminated by asbestos and 

mold spores as of that date, the extent of such contamination, the costs to cure or remediate such 

contamination, and the effects of such contamination on the value of the subject property. The 

court’s examination of plaintiffs’ request for admissions discloses that plaintiffs’ sought responses 

from defendant to ten questions, several of which were multifaceted. In response, defendant 

admitted, in part, question 5, denied question 10, and issued responses to the remaining 8 questions 

with a recitation that defendant “can neither admit nor deny the allegations” because either a term 

was not defined, defendant did not conduct any testing, or such documents and information are “in 

the possession of the plaintiff.”

The court’s review of plaintiffs’ request for admissions reveals that several questions solicit 

admissions from defendant with respect to the alleged cause and resultant damage to the subject 

property, the accuracy of environmental test results, and the scope of remediation performed on 

the subject property by third parties. Specifically, plaintiffs seek admissions from defendant that 

include: whether efforts to repair an alleged water leak caused “construction debris” to be “spread 
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throughout” the house on the subject property; whether the “construction debris” from the subject 

property contained “friable asbestos at levels exceeding levels considered safe for occupancy”; 

whether the house was “sealed, [while] asbestos and mold remediation efforts were in progress”

by a “corporation licensed to perform asbestos remediation”; and whether the house was 

“habitable” on October 1, 2010. Thus, several requests solicit admissions of the ultimate factual 

issues and matters of opinion to be determined by the court in this matter. However, when an 

answering party objects to a request for admission, reciting a lack of information or knowledge, 

they must represent that “a reasonable inquiry was made and that the information known or readily 

obtainable is insufficient to enable an admission or denial.” No such affirmative representation 

was contained in defendant’s Responses to Plaintiffs’ Request for Admissions. Thus, defendant’s 

responses did not strictly conform to the requirements of R. 4:22-1. Nonetheless, because 

plaintiffs’ request for admissions numbered 2, 3, 4, 8, and 9 attempted to establish the ultimate 

facts in issue, or elicit opinion responses, the court concludes that they were inappropriate demands 

under R. 4:22-1 and therefore, must be stricken. 

 However, the court observes that defendant admitted, in part, the content of request for 

admission number 5. Accordingly, the court will admit, as part of the record in this matter, that: 

(i) on October 26, 2009, a hearing was conducted before the Essex County Board of Taxation; and 

(ii) Commissioner Robert Gaccione presided over said hearing; and (iii) Joan M. Kozeniesky, the 

former Tax Assessor for Montclair Township appeared on behalf of Montclair Township at such 

hearing. 

 Additionally, the court highlights that defendant offered no explanation, in response to 

plaintiffs’ motion, for the tardiness of the responses to request for admissions numbered 1, 5, 6, 7, 

and 10. R. 4:22-1 deems a request “admitted unless, within 30 days after service of the request, 
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or within such shorter or longer time as the court may allow, . . serves upon the party requesting 

the admission a written answer or objection. . .” Here, on May 8, 2017, the court ordered defendant 

to “furnish responses to plaintiffs’ April 8, 2016 requests for admissions within thirty (30) days. . 

.” It was not until June 13, 2017, approximately 36 days after the request for admissions were 

deemed served, that defendant forwarded plaintiffs “our response to the request for admissions.” 

Notwithstanding the strict time periods specified under R. 4:22-1, the court is permitted to relax 

same, or if the court determines that an answer does not comply with the requirements of the rule, 

“may order that the matter is admitted or that an amended answer be served.” R. 4:22-1. See also 

Klimowich v. Klimowich, 86 N.J. Super. 449, 452 (App. Div. 1965); Hungerford v. Greate Bay 

Casino Corp., 213 N.J. Super. 398, 404 (App. Div. 1986). 

 Here, defendant’s counsel asserts that “virtually none of the documents referenced in 

Paragraph 17 of the plaintiffs’ declaration are included” in defendant’s counsel’s files, or 

accompanied plaintiffs’ request for admissions. Moreover, although the court requested plaintiffs’ 

furnish the court with evidence that the documents referred to in plaintiffs’ request for admissions 

were supplied to defendant, plaintiffs failed to furnish such evidence to the court. Therefore, a 

genuine issue exists whether defendant was in possession of copies of the documents referenced 

in plaintiffs’ request for admissions, or the documents referred to in paragraph 17 of the plaintiffs’ 

declaration in support of the motion, to permit a timely response. 

 Accordingly, the court directs plaintiffs to furnish defendant with copies of any and all 

environmental studies, remediation, analysis, reports, work orders, and invoices concerning the 

alleged asbestos and mold contamination of the subject property, including any document, paper, 

certificate, record, attachment, or thing referenced in request for admissions 1, 5, 6, 7 and 10, no 

later than Tuesday, September 19, 2017. Defendant shall furnish plaintiffs with amended 
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responses to request for admissions 1, 5, 6, 7, and 10, no later than Thursday, October 19, 2017. 

C. Motion to Consolidate 

 Plaintiffs move before the court to consolidate their 2017 local property tax appeal, with 

plaintiffs 2011 local property tax appeal. 

 R. 8:8-3(a) governs the consolidation of actions in the New Jersey Tax Court: 

The Tax Court on its own motion or on a party's motion may 

consolidate actions if they present a common question of law or fact, 

involve the same property or related properties or the same or similar 

proofs. 

[R. 8:8-3(a).] 

 In their motion to consolidate, plaintiffs assert that the 2011 and 2017 tax appeal involve 

the same property and present common questions of law and of fact. Plaintiffs allege that their 

2017 tax appeal is based on “continuing asbestos remediation and reconstruction of plaintiffs’

home from sudden collapse of asbestos-containing plaster ceilings.” Plaintiffs contend that a 

Memorandum of Judgment was entered by the Essex County Board of Taxation “on or about June 

16 2017 after [a] hearing before Commissioner Peter Stewart in May 2017.” According to 

plaintiffs, Commissioner Stewart represented that “plaintiffs would get a judgment to consolidate 

[the 2017 tax appeal] with the instant 2011 continuing asbestos remediation appeal. . .” 

 On June 16, 2017, the Essex County Board of Taxation mailed the memorandum of 

judgment to plaintiffs with respect to their 2017 petition of appeal. On July 14, 2017, plaintiffs 

filed “a notice of appeal to Tax Board’s Judgment at the Tax Court Management Office with 

supporting documents based on continuing asbestos remediation, forced relocation and continued 

reconstruction of plaintiffs’ home.” Plaintiffs assert that, “pursuant to Commissioner’s advice,” 

they now move before this court to consolidate their 2017 tax appeal with their 2011 tax appeal. 
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 More importantly, plaintiffs argue that, because “jurisdiction was assumed over plaintiffs’ 

2017 appeal by the [Essex County] Tax Board in 2017” and “Commissioner [Stewart] expressly 

rejected defendant’s argument that plaintiffs’ appeal filed on or about April 13, 2017. . . could not 

be considered,” the “appeal to [Essex County] Tax Board’s Judgment affirming defendant’s 2017 

tax assessment is now properly consolidated with the 2011 appeal.”

Plaintiffs further note that their 2017 appeal to the Tax Court is “based on continuing 

chrysotile asbestos issues, remediation and reconstruction of plaintiffs’ home since the initial 

massive and sudden first level plaster ceiling collapse and contamination events of May 5-6, 

2009,” whereby, they assert, there was contamination of their home’s HVAC system. In their 

motion, plaintiffs highlight that “[t]he home was quarantined by the State for airborne asbestos 

remediation through December 14, 2011,” and that air testing in the home “performed by 

plaintiffs’ contractor EnviroVision in February, 2010 [] was positive for toxic levels of chrysotile 

asbestos.” EnviroVision’s positive air tests reports finding total contamination have been before 

this court since 2011, assert plaintiffs, when the court “assumed jurisdiction of all three 

uninterrupted contamination appeals.” In essence plaintiffs suggest that the two tax appeals at 

issue here – for the 2011 tax year, and for the 2017 tax year – present a common question of law 

and of fact, and that, because of this and the fact that both appeals concern the subject property, 

consolidation of the appeals is appropriate. 

 Defendant maintains that “[i]f in fact the 2017 appeal was properly and timely filed, the 

Township has no objection to consolidating this appeal with the pending 2011 appeal.” However, 

defendant offers no factual basis, support, or other evidence to the court that plaintiffs’ 2017 local 

property tax appeal to the Essex County Board of Taxation was filed timely or untimely. 
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Initially, the court observes that the June 1, 2017 Memorandum of Judgment issued by the 

Essex County Board of Taxation dismissed plaintiffs’ 2017 Petition of Appeal with prejudice, 

under judgment code 5F, with the notation “presently pending in Tax Court.” However, more 

critically, plaintiffs state in their declaration in support of motion to consolidate that, “plaintiffs 

appeal [was] filed on or about April 13, 2017” with the Essex County Board of Taxation. 

Moreover, during oral argument on April 28, 2017 with respect to plaintiffs’ March 17, 2017 

motions, plaintiffs represented to the court that they filed, or attempted to file, a Petition of Appeal 

challenging their 2017 tax year local property tax assessment with the Essex County Board of 

Taxation on or about April 12, 2017. 

 It is well-settled that the Tax Court is a “court of limited jurisdiction.” McMahon v. City 

of Newark, 195 N.J. 526, 542-543 (2008). The court’s “jurisdiction is constrained by the language 

of its enabling statutes.” Prime Accounting Dept. v. Twp. of Carney’s Point, 212 N.J. 493, 505 

(2013). The statutory jurisdiction conferred on the court is expressed, in part, as the authority “to

review actions or regulations with respect to a tax matter of. . . (2) [a] county board of taxation; 

(3) [a] county or municipal official...” N.J.S.A. 2B:13-2. However, strict compliance with filing 

deadlines is a crucial condition precedent to conferring jurisdiction on the court. As our Supreme 

Court has expressed, the “failure to file a timely appeal is a fatal jurisdictional defect.” F.M.C. 

Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 424-25 (1985). Taxpayers are required to 

“file timely. . . appeals and that they are barred from relief if they fail to do so.” Hackensack City 

v. Bergen County, 24 N.J. Tax 390, 401 (App. Div. 2009) (quoting Horrobin v. Director, Division 

of Taxation, 1 N.J. Tax 213, 216 (Tax 1979)). See also Mayfair Holding Corp. v. North Bergen 

Township, 4 N.J. Tax 38, 41 (Tax 1982). A “strict adherence to statutory time limitations is 

essential in tax matters, borne of the exigencies of taxation and the administration of local 
18 

government.” F.M.C. Stores Co., supra, 100 N.J. at 424-25 (citing Princeton Univ. Press v. 

Borough of Princeton, 35 N.J. 209, 214 (1961)). Thus, the failure to timely file a complaint will 

deprive the court of jurisdiction even in the absence of harm to the defendant. Lawrenceville 

Garden Apartments v. Township of Lawrence, 14 N.J. Tax 285 (App. Div. 1994). A court’s 

subject-matter jurisdiction cannot be conferred, nor waived, by agreement of the parties. See R.

4:6-2(a); R. 4:6-7. 

 Pursuant to N.J.S.A. 54:3-21(a)(1), a taxpayer feeling aggrieved by the assessed value of 

the taxpayer’s property in a taxing district:

may on or before April 1, or 45 days from the date the bulk mailing 

of notification of assessment is completed in the taxing district, 

whichever is later, appeal to the county board of taxation by filing 

with it a petition of appeal; provided, however, that any such 

taxpayer or taxing district may on or before April 1, or 45 days from 

the date the bulk mailing of notification of assessment is completed 

in the taxing district, whichever is later, file a complaint directly 

with the Tax Court, if the assessed valuation of the property subject 

to the appeal exceeds $1,000,000. 

[N.J.S.A. 54:3-21(a)(1).] 

 However, when a taxing district has implemented a municipal-wide revaluation or 

municipal-wide reassessment, “a taxpayer. . . may appeal before or on May 1 to the county board 

of taxation by filing with it a petition of appeal or, if the assessed valuation of the property subject 

to the appeal exceeds $1,000,000, by filing a complaint directly with the State Tax Court.” 

N.J.S.A. 54:3-21(a)(1). 

In carrying out its statutory duties, the Tax Court is required to “determine all issues of fact 

and of law de novo.” N.J.S.A. 2B:13-3(b). A de novo hearing offers the reviewing court the 

opportunity to consider the matter "anew, afresh [and] for a second time.” Romanowski v. Brick 

Township, 185 N.J. Super. 197, 204 (1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983). It is 
19 

incumbent upon the reviewing court, in a de novo proceeding, to make its own findings of fact. 

All relevant facts must be considered, “whether or not they were previously considered. . . in 

making the assessment.” Middlesex Water Co. v. Director, Division of Taxation, 3 N.J. Tax 233 

(Tax 1981). In tax appeal matters, the reviewing court is required to review an assessment and 

“apply the same statutory criteria that direct the assessor in the discharge of his statutory duty.” 

Chevron U.S.A., Inc. v. City of Perth Amboy, 9 N.J. Tax 571, 581 (Tax 1988). The decisions of 

the Tax Court “must be based on the evidence before it and the data that are properly at its disposal. 

It must also be consistent with the issues as framed by proper pleadings or settled presumptive 

rules reflecting the underlying policy that government action is valid.” F.M.C. Stores Co. v. 

Borough of Morris Plains, 100 N.J. 418, 430 (1985). 

 Here, the record is devoid of any evidence of the date the bulk mailing of notification of 

assessment was completed in the defendant taxing district for the 2017 tax year. Therefore, the 

court is unable to discern the timeliness of plaintiffs’ challenge to its 2017 local property tax 

assessment before the Essex County Board of Taxation, and the resulting jurisdiction of this court. 

Accordingly, the court will schedule a plenary hearing on the court’s subject-matter jurisdiction 

over plaintiffs’ 2017 tax appeal, and offer the parties an opportunity to present evidence, with 

respect to the timeliness of plaintiffs’ 2017 Petition of Appeal before the Essex County Board of 

Taxation including, but not limited to, the effect of entry of the Essex County Board of Taxation’s 

judgment dismissing plaintiffs’ 2017 Petition of Appeal with prejudice. Therefore, the court 

reserves decision on plaintiffs’ motion to consolidate its 2011 tax appeal with its 2017 tax appeal 

pending the outcome of the plenary hearing on subject-matter jurisdiction. 

III. Conclusion 

For the foregoing reasons, the court denies plaintiffs’ motion seeking 
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vacatur/reconsideration of the court’s May 8, 2017 Order; grants, in part, and denies, in part, 

plaintiffs’ motion to admit facts into evidence; and reserves decision on plaintiffs’ motion to 

consolidate plaintiffs’ 2017 tax appeal with plaintiffs’ 2011 tax appeal, pending the outcome of a 

plenary hearing on this court’s subject-matter jurisdiction over plaintiffs’ 2017 tax appeal 

 Very truly yours, 

 

 /s/Hon. Joshua D. Novin, J.T.C.