**NOT FOR PUBLICATION WITHOUT APPROVAL OF THE TAX COURT COMMITTEE ON OPINIONS** 
TAX COURT OF NEW JERSEY

K ATHI F. F IAMINGO **JUDGE** 120 High Street Mount Holly, NJ 08060 (609) 288

- 9500 EXT 38303

***** **October 16, 2020**
**Martin J. Buckley, Esq. Dasti, Murphy, McGuckin, Ulaky**  **Koutsouris & Connors 506 Hooper Avenue**  **Toms River, New Jersey 08753 Joseph E. Bock, Jr., Esq.**  **Spiotti & Associates, P.C. 271 U.S. Highway 46**  **Fairfield, New Jersey 07004** 

**Re: Jankovich v. Point Pleasant Borough**  **Docket No s. 010619-2020**  **Dear Counsel :**  **This letter constitutes the court’s opinion with respect to defendant’s**  **motion to dismiss for**  **failure to prosecute. As discussed more fully below the cour t**  **denies defendant’s motion.** 
**I. Statement of Facts**  **and Procedural History Plaintiff filed an appeal of the 2020 tax year assessment with the Ocean Count**  **y Board of Tax Appeals (“County Board”) and was informed that a hearing would be held on July 16, 2020.** 
**Th e County Board’s offices are located**  **in Toms River, New Jersey. Counsel for plaintiff received**  **notices for hearings of appeals in several Ocean County municipalities for July 14, 15 and 16, 2020, including Beach Haven Borough, Plumsted Township, Point Pleasant Beach, South Toms**  **River Borough, Lakehurst Borough, Long Beach Township, Ocean Township, Stafford Township and Jackson Township, all of which were scheduled to be heard in Toms River, N.J. On July 16,** **2**

**2020 counsel appeared for hearings on properties located in Jackson Township at the Toms Rive r**  **location and expected that the appeal of the subject property would**  **also be held at the same**  **location. Counsel learned at the conclusion of the Jackson Township appeals that the appea ls for**  **properties located in Point Pleasant Borough were being heard by the County Board at a location**  **in Brick Township. Upon receiving this information, counsel had his office call the County Boar d**  **and inform them that he was traveling to Brick Township from the Toms River County Board appeal location** 

**. Counsel arrived at the Brick Township location at approximately 9:45 a.m. after the appeals**  **for Point Pleasant Borough had been concluded but while the County Board Commissioner was hearing appeals for**  **other municipalities . Counsel requested and was permi**  **tted to place his appearance on the record, as well as the fact that he had intended to present evidence in**  **the appeal**  **of the instant matter**  **. Counsel had previously provided that with evidence**  **to the County Board representatives as required.**  **Nonetheless a judgment dismissing the appeal in this matter for failure**  **to prosecute was issued on July 27, 2020. Plaintiff filed the within appeal on September 10, 2020. Defendant filed the instant**  **motion to dismiss for failure to prosecute at the County Board on September 30, 2020 which plainti**  **ff**
**opposes. II.**  **Conclusions of Law**
**N.J.S.A. 54-51A-1 (a)**  **provide s, in part, that “any party who is dissatisfied with the**  **judgment, action or determination of the county board of taxation may seek review of that judgment, action or determination in the Tax Court, pursuant to rules of court.” However, wher**  **e Tax Court determines that the dismissal was as a result of the taxpayer’s failure**  **to prosecute the appeal before the County Board, there is no review. N.J.S.A. 54:51A** 

**- 1(c)(2**  **). See**  **also N.J.A.C.** **3**

**18:12A-1.9 (“**  **A petitioner shall be prepared to prove his case by complete and competent evidence. In the absence of some evidence, the board may dismiss the petition. In the case of**  **failure to appear, the board may dismiss the petition for lack of prosecution.**  **”) Typically, a failure to appear**  **in the context of a dismissal for lack of prosecution precludes a de**  **novo review by the Tax Court. VSH Realty, Inc. v. Harding Tp., 291 N.J. Super.**  **295, 300 (App. Div. 1996). Thus, if sustain ed**  **by the Tax Court, the dismissal of an appeal by a county board of taxation resulting from the failure**  **to prosecute will terminate the taxpayer’**  **s right to appeal the assessment for the tax year in**  **question , without a hearing.**  **Pipquarryco, Inc. v. Boroug h of Hamburg, 15 N.J. Tax**  **413, 418 (Tax**  **1996). In evaluating a motion to dismiss under the standards of N.J.S.A. 54:51A-**  **1(c)(2), the Tax Court must ascertain whether the taxpayer’s failure to prosecute before the county boar**  **d fell within the intendment of the statute. Veeder v. Township of Berkeley, 109**  **N.J. Super. 540, 545 (App.**  **Div. 1970). T**  **he motion to dismis**  **s should be granted sparingly and only in the most egregious**  **circumstances**

**. Wilshire Oil Co. of Texas v. Township of Jefferson, 17 N.J. Tax**  **583, 585 (Tax**  **1998). A dismissal**  **pursuant to this statute should be circumscri**  **bed by the same obligations to admin**  **ister justice as are applicable to the Tax Court, and all doubts should be resolved against**  **dismissal. Ibid.**  **The “administration of the court’s calendar with blind rigidity cannot take pri ority**  **over a party’s...right to contest its assessment.” VSH Realty**  **, Inc. v. Township of Harding**  **, 291 N.J. Super.**  **295, 301 (App.**  **Div. 1996) (citation omitted). Dismissal of an action is a drastic remedy**  **and should not be invoked “**  **unless the plaintiff's behavior is deliberate and contumacious.” Id.**  **at 300.**  **Here the uncontroverted certification of plaintiff’s counsel demonstrates th at at best**  **counsel erred in believing that the hearing on the within appeal would be heard in the same locati on** **4**

**as appeals he had attended for eight other municipalities on the prior two days of County Board**  **appeals. Furthermore, counsel certifies that he attended hearings at that same loc ation for yet**  **another municipality on the day the hearing in this matter was scheduled. Moreover, upon lea rning**  **of his error he contact ed**  **the County Board to advise them he would be there shortly, only to learn on his arrival some 45 minutes after the scheduled hearing time, that the appea**  **l had been dismissed due to his lateness.**  **Our courts have consistently recognized that dismissal of a cause of action based on a str ict**  **adherence to calendar practice violates the equitable principles of our system of j ustice. As Judge**  **Kuskin expressed, “calendar control cannot take precedence over principles of fundamenta l**  **fairness. The court system exists to administer justice, not merely to satisfy the co urt’s desire to**  **dispose of cases on its calendar. Courts exist to serve the public through counsel, not vice versa.”**  **Pipquarryco, Inc. v. Hamburg Borou gh**  **, 15 N.J. Tax at 417 (citing Rutherford Realty Assoc. v.**  **Borough of Rutherford, 277 N.J. Super. 347 (App. Div. 1994)). “Where, on or before the**  **scheduled hearing date, a taxpayer communicates to the county board the taxpayer's desire to prosecute an app**  **eal and provides reasonable indicia that the taxpayer will, on a later date, be prepared to proceed in a ‘meaningful manner’, the taxpayer's conduct should not be regar**  **ded as either ‘deliberate’ or ‘contemptuous’, and the county board should not dismiss th**  **e appeal for failure to prosecute.”**  **Id. at 419.**  **“[T]he drastic step of dismissal should not be invoked unless it is clear that the c onduct of**  **the offending party is deliberate.” Rutherford Realty Assoc. v. Borough of Rutherford, 277 N.J.**  **Super . at 353.;**  **( See**  **Jepson Refrigeration Corp. v. City of Trenton, 295 N.J. Super. 492, 496 (App. Div. 1996)). “Not only are procedural dismissals, with prejudice, generally unwarrante**  **d...but 5** 

**procedural dismissals themselves are not favored.” Id**  **. at 352**

**- 353 (**  **quoting Con nors v. Sexton**  **Studios, Inc., 270 N.J. Super. 390 (App. Div. 1994)). Counsel certifies, and there is no evidence to the contrary that he was prepared t**  **o proceed with evidence to contest the appeal and would have done so if permitted by the Commissioner**  **1**

**. Further, counsel demonstrates to the satisfaction of the court, his lateness in appe**  **aring at the time, date and location of the hearing at the County Board was not deliberate or contumacious and was**  **in fact an understandable error given the circumstances. III,.**  **Conclusion For the reasons set forth above, the court denies defendant’s motion to dismiss plai**  **ntiff’s complaint.**  **Very truly yours, /s/ Kathi F. Fiamingo**  **Kathi F. Fiamingo, J.T.C.**

**1 At oral argument defendant argued that had plaintiff presented its evidence the appeal w**  **ould have been dismissed for failure to present adequate evidence, 5B. However that is**  **not what occurred. Counsel for plaintiff was not permitted to present any evid**  **ence, and the appeal was dismissed for lack of prosecution. The court therefore rejects counsel’s argument**  **that the evidence presented would not have been sufficient**  **as that was not the basis for the County Board’s determination in this matter** 

**.**