SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1980-16T1

JESSE WOLOSKY,

Plaintiff-Appellant,

v.

FREDON TOWNSHIP and 

MICHAEL AND PENNY

HOLENSTEIN,

Defendants-Respondents.

________________________________

Argued May 30, 2018 – Decided July 24, 2018

Before Judges Hoffman and Mayer.

On appeal from Tax Court of New Jersey, Docket 

No. 008267-2016.

Matthew R. Petracca argued the cause for 

appellant (King and Petracca, LLP, attorneys; 

Matthew R. Petracca, on the brief).

Tara Ann St. Angelo argued the cause for 

respondents Michael and Penny Holenstein 

(Gebhardt & Kiefer, PC, attorneys; Tara Ann 

St. Angelo, on the brief).

William E. Hinkes argued the cause for 

respondent Fredon Township (Hollander, 

Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, 

Vandenberg & Hontz, LLC, attorneys, join in 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-1980-16T1

the brief of respondents Michael and Penny 

Holenstein).

PER CURIAM

Plaintiff Jesse Wolosky appeals from a Tax Court judgment

dismissing his complaint, which alleged the tax assessment for the 

property of defendants, Michael and Penny Holenstein,1 "is below 

market value" and demanded "judgment increasing the said 

assessment to the correct assessable value." We affirm.

I

Fredon Township (the Township) previously assessed 

defendants' property at $544,400 in 2009 and 2010, $506,300 in 

2011, and $437,600 in 2012 through 2016. On March 30, 2016, 

plaintiff filed a petition of appeal challenging the Township's 

assessment of defendants' property with the Sussex County Board 

of Taxation, which dismissed the appeal without prejudice, citing 

the conflict presented by Penny Holenstein's employment as a tax 

assessor. Plaintiff then filed a complaint with the Tax Court

seeking the same relief. During discovery, plaintiff moved to 

compel production of a January 2015 appraisal prepared when 

 

1 Penny Holenstein serves as the tax assessor for a municipality

where plaintiff owns property. Plaintiff filed an appeal from the 

Holenstein's assessment after he unsuccessfully challenged Ms. 

Holenstein's assessment on his property.
3 A-1980-16T1

defendants refinanced the mortgage on their property. The Tax 

Court denied the motion.

At trial, plaintiff presented expert Matthew Nemeth as his 

only witness. According to Nemeth, the subject property, located

on a cul-de-sac, contains 6.26 acres of land and a single-family 

colonial house with four bedrooms, three and one-half baths, an 

attached three-car garage, a porch, a balcony, an in-ground pool, 

and a shed. Nemeth described the house as "average quality in 

good condition." Nemeth utilized a sales comparison approach and

concluded to "a reasonable degree of certainty" that the value of 

the subject property was $535,000. 

To acquire data regarding comparable sales, Nemeth relied on 

the websites of the New Jersey Association of Tax Boards, New 

Jersey Property Fax, and Multiple Listing Service (MLS). He did 

not confirm any data with the buyer, seller, broker or attorney 

involved in the transactions he utilized as comparable sales. He 

also did not access the deeds, sale documents, or property record 

cards for any of the comparable properties, nor did he physically 

inspect any of the comparable properties. 

After plaintiff rested, defendants moved to dismiss. The Tax 

Court granted the motion to dismiss based on plaintiff's failure 

"to present sufficient competent evidence to overcome the 

presumption of correctness." The judge found the "origins and 
4 A-1980-16T1

accuracy" of the information and sources plaintiff's expert used

were "unknown and unreliable," and further noted, "While an expert 

may utilize hearsay, [he or she] cannot solely rely upon it."

Furthermore, Nemeth provided no market data to support the 

adjustments he made to comparable sales. 

II

First, we address three preliminary issues the parties raised 

on appeal: whether we should consider the 2017 assessment of the 

subject property; whether we should consider plaintiff's ratio of 

assessed value argument first raised on appeal; and whether the 

Tax Court improperly relied on an unpublished case.

Plaintiff argues the increase in assessment of the subject 

property to $440,000 for the 2017 tax year from a prior assessment 

of $437,600 supports his contention that there are multiple errors 

in the 2016 tax assessment and that the 2017 assessment should be

considered as part of this appeal. However, "[o]ur scope of review

. . . is limited to . . . the record as it existed at the time of 

trial." N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 

261, 278 (2007) (citing R. 2:5-4). Attempting to present documents 

for the first time on appeal is "a gross violation of appellate 

practice and rules . . . ." Middle Dep't Inspection Agency v. 

Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977). Plaintiff 

provided the 2017 assessment for the first time on appeal.
5 A-1980-16T1

Furthermore, the 2017 assessment is irrelevant because the 

applicable valuation date for this appeal is October 1, 2015,

while the valuation date for the 2017 assessment is October 1, 

2016. See N.J.S.A. 54:4-23 (setting the valuation date for tax 

assessment as October 1 of the preceding year). Accordingly, we 

decline to consider the 2017 tax assessment on appeal.

Plaintiff makes the argument, for the first time on appeal,

that the ratio of the assessed valuation to the true value of the 

subject property mandates denial of the motion to dismiss. 

However, we usually decline consideration of an issue not properly 

raised before the trial judge, unless the jurisdiction of the 

court is implicated or the matter concerns an issue of great public 

importance. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing 

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Because

plaintiff did not raise below the issue concerning the ratio of 

assessed valuation, nor does it concern jurisdiction or a matter 

of great public importance, we decline to address it. 

Plaintiff argues the Tax Court should not have relied upon 

DiSenso v. Wyckoff Township, No. 014165-2015 (Tax Aug. 31, 2016) 

in its opinion dismissing his tax appeal. Specifically, plaintiff 

contends the reliance was improper because the case is unpublished, 

the facts differ from those of the subject appeal, and the case 

fails to apply the correct standard of review. 
6 A-1980-16T1

Rule 1:36-3 provides, "No unpublished opinion shall 

constitute precedent or be binding upon any court." However, the 

Tax Court did not cite DiSenso as precedent or binding authority. 

The Tax Court recognized the case as unpublished and simply

"adopted the . . . language as its own, given that the opinion and 

the published case law cited therein are well reasoned and 

pertinent to the facts of the present case." Although we do not 

approve of the Tax Court's discussion of DiSenso in its opinion,2

we discern no harmful error here since we find the court used the 

opinion as a non-binding secondary authority consistent with its 

own analysis and decision. The Tax Court found the presumption 

of validity analysis from DiSenso helpful, and mistakenly chose 

to discuss the case in its opinion since the critical facts in

DiSenso are substantially similar to those in the matter under 

review. 

III

Turning to the substantive issue, plaintiff argues the Tax 

Court erred in dismissing his complaint. We disagree.

Our review of a Tax Court decision is limited. Estate of 

Taylor v. Dir., Div. of Taxation, 422 N.J. Super. 336, 341 (App. 

 

2 Our Supreme Court has made clear that "no unpublished decision 

shall be cited by any court." In re Alleged Improper Practice, 

194 N.J. 314, 330 n.10 (2008) (quoting R. 1:36-3). 
7 A-1980-16T1

Div. 2011). "We also accord the Director's decision a presumption 

of correctness in light of the Director's expertise." Ibid.

(citing H.J. Bradley, Inc. v. Taxation Div. Dir., 4 N.J. Tax 213, 

229 (Tax 1982)). The Tax Court's factual findings "will not be 

disturbed unless they are plainly arbitrary or there is a lack of 

substantial evidence to support them." Yilmaz, Inc. v. Dir., Div. 

of Taxation, 390 N.J. Super. 435, 443 (App. Div. 2007) (citation 

omitted). Thus, we examine "whether the findings of fact are 

supported by substantial credible evidence with due regard to the 

Tax Court's expertise and ability to judge credibility." Ibid.

(citation omitted). However, our review of the Tax Court's legal 

conclusions is de novo. Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995).

When examining a taxpayer's challenge to a real estate tax 

assessment, it is well-settled such assessments are "entitled to 

a presumption of validity." MSGW Real Estate Fund, LLC v. Borough 

of Mountain Lakes, 18 N.J. Tax 364, 373 (Tax 1998). The 

presumption stands when "the assessment is not so far removed from 

the true value of the property . . . as to justify removal of the 

presumption of validity." Transcon. Gas Pipe Line Corp. v. 

Bernards Twp., 111 N.J. 507, 517 (1988) (citing Pantasote Co. v. 

City of Passaic, 100 N.J. 408, 415 (1985)). "[O]nce sufficient 

competent evidence is produced and the presumption overcome, . . . 
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[t]he court must then turn to a consideration of the evidence 

adduced on behalf of both parties and conclude the matter based 

on a fair preponderance of the evidence." Ford Motor Co. v. Twp. 

of Edison, 127 N.J. 290, 312 (1992) (first alteration in original)

(quoting Pennwalt Corp. v. Twp. of Holmdel, 4 N.J. Tax 51, 55-56 

(Tax 1982)).

In an action challenging a municipal real estate assessment, 

"[i]f the defendant moves to dismiss at the close of the 

plaintiff's proofs, pursuant [to Rule] 4:37-2(b), the court 

. . . must accept [the plaintiff's] evidence as true and accord 

the plaintiff all legitimate inferences [that] can be deduced from 

the evidence." MSGW, 18 N.J. Tax at 376 (citing Brill v. Guardian 

Life Ins. Co. of Am., 142 N.J. 520, 535 (1995)). "The trial court 

is not concerned with the worth, nature or extent (beyond a 

scintilla) of the evidence, but only with its existence, viewed 

most favorably to the party opposing the motion." Id. at 378 

(quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).

"Under the 'net opinion' rule, an opinion lacking in . . .

foundation and consisting of bare conclusions unsupported by 

factual evidence is inadmissible." Rosenberg v. Tavorath, 352 

N.J. Super. 385, 401 (App. Div. 2002) (citations omitted). 

N.J.R.E. 703 requires an expert base his or her opinion on "facts, 

data, or another expert's opinion, either perceived by or made 
9 A-1980-16T1

known to the expert, at or before trial." Ibid. An expert must 

provide "the why and wherefore" behind an opinion rather than 

solely issuing conclusions. Ibid. (quoting Jimenez v. GNOC, Corp., 

286 N.J. Super. 533, 540 (App. Div. 1996)). "The net opinion rule 

. . . mandates that experts 'be able to identify the factual bases 

for their conclusions, explain their methodology, and demonstrate 

that both the factual bases and the methodology are reliable.'" 

Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Landrigan v. 

Celotex Corp., 127 N.J. 404, 417 (1992)). An expert's opinion 

cannot be "based merely on unfounded speculation and unquantified 

possibilities." Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. 

Super. 289, 300 (App. Div. 1990).

Plaintiff contends the Tax Court erred in dismissing his 

claim because "unrebutted and credible expert testimony" 

established a market value and assessment of the subject property 

of $535,000. He argues dismissal was inappropriate because he 

presented more than "a scintilla" of evidence in support of the 

asserted valuation. See MSGW, 18 N.J. Tax at 378. He also 

contends the judge failed to view the evidence "in a light most 

favorable" to the plaintiff, and he overcame the presumption of 

validity due to Nemeth's testimony. See ibid.

The Tax Court dismissed the claim based on plaintiff's 

"failure to overcome the presumption of validity of the 
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assessment." The court found Nemeth "relied solely on hearsay 

contained in internet sources" and failed to confirm any data on 

comparable sales. The court also found Nemeth's conclusion 

regarding the value of the subject property "neither sustainable 

nor credible." 

We find the record supports the Tax Court's rejection of 

Nemeth's testimony. At trial, defendants stipulated to Nemeth's 

qualifications as a residential real estate appraiser, and the 

court accepted him as an expert. However, Nemeth relied on the 

websites of the New Jersey Association of Tax Boards, New Jersey 

Property Fax, and Multiple Listing Service, and failed to confirm 

any data with the buyer, seller, broker or attorney involved in 

the comparable property transactions. He also failed to access 

the deeds, sale documents, or property record cards for any of the 

comparable properties, nor did he physically inspect any of the 

comparable properties.

Furthermore, Nemeth made adjustments to the value of the 

comparable properties that he asserted were "extracted from the 

market data and cross checked with other accepted tax appeals from 

this market area to ensure they are in line and acceptable." 

However, Nemeth did not provide the market data relied on to 

calculate those adjustments. Accordingly, Nemeth's testimony 

constituted a net opinion because he failed to "identify the 
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factual bases for [his] conclusions" or "demonstrate that both the 

factual bases and the methodology are reliable." See Townsend, 

221 N.J. at 55.

Given Nemeth's inadmissible testimony, plaintiff provided no 

evidence to overcome the presumption of validity regarding the 

Board's tax assessment. Without Nemeth's testimony, plaintiff 

failed to provide even "a scintilla" of evidence in support of his 

asserted valuation. See MSGW, 18 N.J. Tax at 378. Accordingly, 

plaintiff failed to overcome the presumption of validity and the 

Tax Court properly dismissed his complaint.

IV

Plaintiff also argues the court erred in denying his discovery 

motion to compel the production of defendants' refinance mortgage 

appraisal. We disagree.

We review discovery orders for abuse of discretion. Capital 

Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 

79 (2017). Thus, "appellate courts are not to intervene but 

instead will defer to a trial judge's discovery rulings absent an 

abuse of discretion or a judge's misunderstanding or 

misapplication of the law." Id. at 79-80 (citing Pomerantz Paper 

Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). 

Plaintiff incorrectly asserts the discovery standard 

established in Rule 4:10-2 applies to the current matter; however, 
12 A-1980-16T1

matters pending in the small claims track instead apply Rule

8:6-1(a)(4). Rule 8:6-1(a)(4) specifically exempts "local 

property tax cases assigned to the Small Claims Track" from the 

provisions of discovery outlined in Rule 4:10-2. Rule 8:6-1(a)(4) 

provides that discovery in small claims track tax cases is limited 

to production of certain enumerated documents unless "good cause" 

is shown to permit additional discovery. A mortgage appraisal is 

not one of the items enumerated in Rule 8:6-1(a)(4), and plaintiff 

has not shown "good cause" for production. Accordingly, we find 

the Tax Court properly denied the motion to compel.

Affirmed.