* 

NOT FOR PUBLICATION WITHOUT APPROVAL OF 

THE TAX COURT COMMITTEE ON OPINIONS 

TAX COURT OF NEW JERSEY 

Mala Sundar R.J. Hughes Justice Complex 

 JUDGE P.O. Box 975 

 25 Market Street 

 Trenton, New Jersey 08625 

 Telephone (609) 815-2922 

 TeleFax: (609) 376-3018 

 taxcourttrenton2@judiciary.state.nj.us

 February 5, 2018

Paul Tannenbaum, Esq. 

Zipp Tannenbaum Caccavelli, L.L.C. 

280 Raritan Center Parkway 

Edison, New Jersey 08837 

Joseph Palombit, Esq. 

Hoagland Longo et al. 

40 Paterson Street 

New Brunswick, New Jersey 08901 

Re: George Street Holdings, L.L.C. v. City of New Brunswick 

 Block 8, Lot 4.01 (335 George Street) 

 Docket No. 001267-2017 

Dear Counsel: 

 This opinion decides plaintiff’s motion to vacate this court’s prior Order dated October 30, 

2017, under R. 4:50-1(f). The Order had granted, in part, the motion of defendant (“City”) to 

dismiss the above-captioned complaint on grounds plaintiff had failed to respond to the tax 

assessor’s request for income and expense information pursuant to N.J.S.A. 54:4-34 (commonly 

known as Chapter 91) as to the above captioned property (“Subject”). That Order had also directed 

plaintiff to notify the court and the City of its intention to pursue a reasonableness hearing on or 

before November 13, 2017, and had set the dates for discovery completion, and for the 

reasonableness hearing, should plaintiff intend to pursue one. The reasonableness hearing was 

scheduled for January 19, 2018. 
2 

 Instead of notifying the court of its intention to pursue the hearing, plaintiff filed a motion 

on December 21, 2018, asking this court to vacate its Order. The basis for such relief, per 

plaintiff’s counsel’s certification, was that the “City’s motion should have been denied because” 

the City failed to “timely raise the Chapter 91 issue as an affirmative defense in an Answer to 

plaintiff’s complaint.”

The City duly opposed the motion claiming that since the court’s order was not a final 

judgment, R. 4:50-1 did not apply. Rather, the City argued, plaintiff’s motion was, in essence, one 

for reconsideration, which should be denied because it does not meet the standards of R. 4:49-1. 

 (1) Motion to Vacate Judgment under Rule 4:50-1 

Rule 4:50-1 allows the court to vacate its prior judgment under certain circumstances. The 

rule provides that: 

the court may relieve a party or the party’s legal representative from 

a final judgment or order for the following reasons: (a) mistake, 

inadvertence, surprise, or excusable neglect; (b) newly discovered 

evidence which would probably alter the judgment or order and 

which by due diligence could not have been discovered in time to 

move for a new trial under R. 4-49; (c) fraud (whether heretofore 

denominated intrinsic or extrinsic), misrepresentation, or other 

misconduct of an adverse party; (d) the judgment or order is void; 

(e) the judgment or order has been satisfied, released or discharged, 

or a prior judgment or order upon which it is based has been reversed 

or otherwise vacated, or it is no longer equitable that the judgment 

or order should have prospective application; or (f) any other reason 

justifying relief from the operation of the judgment or order. 

[R. 4:50-1 (emphasis added).] 

If a motion is made for reasons (a), (b) and (c), then it should be made within “one year after the 

judgment, order . . . was entered . . .” or “within a reasonable time” under the other sub-sections. 

R. 4:50-2. 
3 

Here, plaintiff moved under R. 4:50-1(f), therefore, timeliness is not a concern especially 

since the motion was filed two months after the court’s October 20, 2017 Order. Nonetheless, the 

rule does not apply because the court’s Order was not a final judgment. See Johnson v. Cyklop 

Strapping Corp., 220 N.J. Super. 250, 258 (App. Div. 1987) (“The reference in the opening 

sentence to a final judgment or order would seem on its face to foreclose any argument as to the 

character of the judicial disposition intended to be subject to the rule. In short, ‘final’ appears to 

qualify both ‘judgment’ and ‘order.’”), certif. denied, 110 N.J. 196 (1988). 

No judgment was entered by this court partially closing out the case. The Order never 

stated anywhere, in the caption or otherwise, that it was final. Rather, pursuant to Ocean Pines, 

Ltd. v. Borough of Point Pleasant, 112 N.J. 1 (1988), the matter was kept open so plaintiff could 

pursue a reasonableness hearing.1 See also Paulison Ave. Assocs. v. City of Passaic, 18 N.J. Tax 

101, 111-12 (Tax 1999) (“A failure to respond to” a Chapter 91 request “does not require a 

dismissal of an appeal but only a limitation on the scope of the hearing to be held before the Tax 

Court,” thus, the court can “hear the matter, but only on a limited basis.”); Pressler & Verniero, 

Current N.J. Court Rules, comment to R. 8:7(e) (2018 ed.) (granting a Chapter 91 motion does not 

“dismiss the appeal in its entirety,” since a taxpayer is entitled to a reasonableness hearing) (citing 

to Ocean Pines, supra, 112 N.J. at 11-12). Indeed, the dismissal in part does not prevent the parties 

from submitting stipulations of settlement, and does not require the parties to file motions to vacate 

the court’s order and reinstate the case so that the settlement may be formally effectuated by a 

judgment impacting the property’s assessment. The court therefore is not required to analyze 

whether R. 4:50-1(f) rule applies. 

 

1 The court’s October 30, 2017 Order stated that if the court or the City was not notified of plaintiff’s intention to 

pursue a reasonableness hearing by November 13, 2017, then the matter would be dismissed without prejudice for 

lack of prosecution. Despite plaintiff’s failure to so notify, the matter was not dismissed. 
4 

 (2) Motion for Reconsideration under Rule 4:49-2 

A motion for reconsideration must “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.” R. 4:49-2. Such a motion “shall be served not later than 

20 days after service of the judgment or order upon all parties by the party obtaining it.” Ibid. The 

20-day limit does not apply if the motion seeks to correct “clerical errors.” Ibid. The 20-day time 

limit is not relaxable. See R. 1:3-4(c) (“Neither the parties nor the court may . . . enlarge the time 

specified by . . . R. 4:49-2 (motion to alter or amend a judgment).”).

Even if plaintiff’s motion was deemed to be one for reconsideration, it cannot be considered 

because it is untimely. The motion was filed December 21, 2018, nearly two months after this 

court’s October 20, 2017 Order. Given that the motion is untimely, the court need not analyze 

whether the standards for reconsideration are satisfied here. See R. 4:49-2; D’Atria v. D’Atria, 

242 N.J. Super. 392, 401 (Ch. Div. 1990) (a motion for reconsideration must show that “(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.”). The scant pleadings here do not allow the court to even glean whether 

there were implied grounds for reconsideration. Seeking reconsideration to proffer an afterthought-of legal argument that is not a result of any new and controlling precedent that could or 

should apply retroactively, is attempting a “second bite at the apple,” a disapproved procedure.

For the aforementioned reasons, the court denies plaintiff’s motion. 

Very truly yours, 

 Mala Sundar, J.T.C.