State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 23, 2014 517488 

________________________________

In the Matter of GOODHUE 

WILTON PROPERTIES, INC.,

Appellant,

v

MEMORANDUM AND ORDER

ASSESSOR OF THE TOWN OF WILTON,

Respondent, 

et al., 

Respondent.

________________________________

Calendar Date: September 4, 2014

Before: Peters, P.J., Stein, Garry and Lynch, JJ.

__________

Brian D. Mercy, Schenectady, for appellant.

The Vincelette Law Firm, Albany (Jonathan G. Schopf of

counsel), for Assessor of the Town of Wilson, respondent.

__________

Lynch, J.

Appeal from a judgment of the Supreme Court (Nolan Jr.,

J.), entered June 26, 2013 in Saratoga County, which partially

granted petitioner's application, in a proceeding pursuant to

RPTL article 7, to reduce the 2009 tax assessment on certain real

property owned by petitioner. 

In 2006, petitioner purchased 72.58 acres of vacant,

unimproved land located in the Town of Wilton, Saratoga County

for $330,000. Two years later, petitioner conveyed 26 acres of

the property to the Town as part of its application for a

subdivision approval. Following this conveyance, the 2008

assessment for the remaining 46.58 acres (hereinafter the subject
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property) was reduced to $230,100. After the subdivision map was

approved and filed, the subject property was divided into a

roadway parcel and 29 separate residential parcels that ranged in

size from .95 acre to 3.24 acres. In 2009, the subject property

was assessed as having a total value of $1,127,500. Petitioner

thereafter commenced this RPTL article 7 proceeding to challenge

this assessed value. After a nonjury trial, at which the parties

each offered the testimony and detailed reports of their

appraisers, Supreme Court determined to adjust the assessments

with respect to 22 of the residential parcels and the roadway,

resulting in a net assessment reduction of those parcels to

$755,753.99. Petitioner now appeals and we affirm. 

Initially, we reject petitioner's argument that respondent

Assessor of the Town of Wilton (hereinafter respondent) did not

meet its burden because it did not explain its methodology. 

Generally, because a tax assessor's property valuation is

presumed to be valid, respondent did not have the initial burden

to establish "proof of the correctness of their valuation"

(Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d

179, 187 [internal quotation marks and citation omitted]). Where

an assessor revalues a particular property between town-wide

revaluations and there is a claim that property was selectively

reassessed, "he or she must be prepared to show how any change

brings such assessment into line with those of other properties

whose assessments go unchanged" (Matter of Harris Bay Yacht Club,

Inc. v Town of Queensbury, 68 AD3d 1374, 1375 [2009] [internal

quotation marks and citation omitted]). Here, although

petitioner alleged in its petition that the property was

selectively assessed, because it presented no arguments or

evidence in support of this claim in the proceedings before

Supreme Court, we find that it was not preserved for our review

(see Matter of Gibson v Gleason, 20 AD3d 623, 624 [2005], lv

denied 5 NY3d 713 [2005]). Moreover, the claim is not applicable

where, as here, each parcel was separately assessed following the

filing of subdivision maps (see RPTL 504 [4]; Matter of Bernard v

Rosenthal, 172 AD2d 931 [1991], lv denied 78 NY2d 864 [1991]

[unless impracticable, subdivision lots should be separately

assessed]). 
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After hearing the testimony and written report by

petitioner's appraiser, Supreme Court determined, and respondent

does not now dispute, that petitioner overcame the generally

applicable presumption of validity, by demonstrating

"[s]ubstantial evidence" of overvaluation, or, put differently,

"the existence of a valid and credible dispute regarding

valuation" (Matter of Adirondack Mtn. Reserve v Board of

Assessors of the Town of N. Hudson, 106 AD3d 1232, 1234 [2013]

[internal quotation marks and citation omitted]). Accordingly,

the court was obligated to "weigh the entire record, including

evidence of claimed deficiencies in the assessment, to determine

whether petitioner has established by a preponderance of the

evidence that its property has been overvalued" (Matter of FMC

Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d at 188). On this

appeal, "the issue distills to whether Supreme Court's

determination is supported by the weight of the evidence" (Matter

of Brooks Drugs, Inc. v Board of Assessors of City of

Schenectady, 51 AD3d 1094, 1095 [2008], lv denied 11 NY3d 710,

[2008] [internal quotation marks and citations omitted]). 

At trial, petitioner relied on the testimony of David

Fontana, a real estate appraiser retained to value the subject

property. Using the comparable sales method, Fontana determined

that, for tax year 2009, the property should have been valued at

$6,200 per acre or $290,000 for the entire property. In

Fontana's view, the property should have been valued as one

parcel, on a per-acre basis, not 29 separate parcels. Respondent

relied on the testimony and report of its expert, Steven Clark,

who also used the comparable sales method. Clark valued each

parcel separately to conclude that, for tax year 2009, the

aggregate value of the subject property was $1,183,000. During

his testimony, Clark explained that the "interior" parcels

without any infrastructure were not as valuable as those with

frontage on the town road. As to the interior lots, he valued

each at $37,000, even though the parcels varied in size. 

Petitioner now contends that Supreme Court should have

valued the property as a whole, on a per-acre basis, and that it

should not have assigned a separate value to each parcel. We

disagree. Generally, whether a property should be valued as a

whole or as the sum of separate parcels is a factual
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determination (see Matter of Adirondack Mtn. Reserve v Board of

Assessors of the Town of N. Hudson, 106 AD3d at 1234). Further,

"[w]here . . . conflicting expert evidence is presented, [this

Court] defer[s] to the trial court's resolution of credibility

issues" (Matter of Lowe's Home Ctrs., Inc. v Board of Assessment

Review and/or Dept. of Assessment Review of Tompkins County, 106

AD3d 1306, 1307 [2013]). In our view, Supreme Court properly

rejected petitioner's opinion in this regard. As the Court

noted, petitioner's expert failed to recognize that, although

unimproved, the subject property had been legally subdivided into

29 separate parcels and that seven parcels were immediately

marketable (see Matter of Ulster Bus. Complex v Town of Ulster,

293 AD2d 936, 940 [2002]). As Supreme Court's factual finding is

explained and supported by the record, it is entitled to

deference (see Matter of City of Troy v Town of Pittstown, 306

AD2d 718, 720 [2003], lv denied 1 NY3d 505 [2003]).

We further find that Supreme Court's determination of each

parcel's value is supported by the record. As noted, both

experts relied upon evidence of comparable sales, which is

"generally the preferred measure of a property's value for

assessment" (Matter of Lowe's Home Ctrs., Inc. v Board of

Assessment Review and/or Dept. of Assessment Review of Tompkins

County, 106 AD3d at 1307 [internal quotation marks and citation

omitted]). Contrary to petitioner's argument, the record

confirms that when he cited comparable sales, respondent's expert

did consider the absence of any infrastructure with respect to

the subject property's 22 interior parcels, and made adjustments

where necessary.1 Supreme Court properly exercised its authority

to adjust the parties' valuations, and its adjustments are

adequately explained and supported by the record (see Matter of

Adirondack Mtn. Reserve v Board of Assessors of the Town of N.

Hudson, 106 AD3d at 1240). We find no basis to disturb Supreme

Court's judgment incorporating its decision and assigning value

1 Supreme Court primarily relied on a comparable sale cited

by both experts. Respondent's expert specifically noted that the

parcels in such comparable sale were sold on a per-lot basis

prior to the completion of the infrastructure and roadway. 

Accordingly, no adjustments were necessary. 
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to each of the 22 interior lots.2 

Peters, P.J., Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

2 Supreme Court's judgment assigned a value to one parcel

that exceeded the value assigned by respondent's appraiser at

trial (parcel 3) and a value to seven parcels that exceeded both

the value assigned by respondent's appraiser and the assessment

at issue (parcels 1, 2, 11, 18, 27, 28 and 29). The judgment was

submitted on notice and Supreme Court retained jurisdiction to

resolve any disputes with regard to individual assessments, but

petitioner did not object to the individual assessments either

before Supreme Court or upon this appeal. Thus, any issue in

this regard has been abandoned (see Roohan v First Guar. Mtge.,

LLC, 97 AD3d 891, 892 [2012]; Matter of Lehigh Portland Cement

Co. v Assessor of the Town of Catskill, 263 AD2d 558, 560

[1999]).