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Volume 2 - Opinions of Counsel SBEA No. 97

Opinions of Counsel index

Board of Assessment Review (subpoena of records in Article 7 proceeding) - Real Property Tax Law, § 512:

Respondent, in an Article 7 proceeding may subpoena relevant records of the petitioner. However, it would be advisable to utilize other statutory discovery devices available to the parties before relying upon subpoena procedures.

Our opinion has been requested as to whether or not the respondent in a proceeding pursuant to Article 7 of the Real Property Tax Law has the right to subpoena records of the petitioner.

Prior to commencing an Article 7 proceeding, the complainant must first have filed a written, verified complaint on or before grievance day. Section 512 of the Real Property Tax Law authorizes the board of assessment review to administer oaths, take testimony and hear proofs in regard to any such complaints. Such board may require the complainant to appear and be examined concerning the complaint and to produce any papers relating to the assessment in question. If the complainant willfully neglects or refuses to attend and be so examined or to answer any material question, he is not entitled to a reduction in his assessment (People v. Purdy, 174 App. Div. 702, 162 N.Y.S. 56; People v. Ferguson, 120 App. Div. 563, 105 N.Y.S. 388).

It has been held that questions pertaining to rents, income, cost of construction, mortgages and fire insurance were material in a hearing on the protest of an assessment (Hilton Inns, Inc. v. Board of Assessors, Village of Tarrytown, 39 Misc.2d 792, 242 N.Y.S.2d 433).

Therefore, the board of assessment review has ample authority to obtain information from the complainant. It should be noted that under normal circumstances, the respondent is not entitled to a bill of particulars of the complainant’s complaint nor to an examination before trial because of the fact that the information to be sought through such devices may be obtained at the grievance day hearing.

Section 678.1 of the Rules of the Supreme Court, Appellate Division, Second Department, requires that in all proceedings to review tax assessments the attorneys for the respective parties must file with the clerk of the trial court, not later than 10 days before the date set for trial, any appraisal report intended to be used at the trial, together with a separate copy of such report for each adverse party to the claim. The appraisal reports are required to contain a statement of the method of appraisal to be relied upon and the conclusions as to the value reached by the experts, together with the facts, figures and calculations by which the conclusions were reached. Also, if sales, leases or other transactions of comparable properties are to be relied on, they must be set forth with such particularity as to permit the transaction to be readily identified. Upon the trial, the parties are limited in their proof as to value to matters set forth in the respective appraisal reports.

Section 678.3 of such Rules provides that if the property be income-producing, a proceeding shall not be added to any certiorari calendar until the petitioner submits to the clerk a certificate from the city, town or other political subdivision involved, stating that it has completed its audit of the petitioner’s books and records or that it has waived such audit.

There are, therefore, many devices by which the respondent may obtain information which it believes to be necessary in order to properly prepare for trail. If a complainant refuses to produce records at the grievance day proceeding and later commences an Article 7 proceeding, the respondent may be entitled to a dismissal of the proceeding if it can prove that the records were material to the issues involved and the petitioner willfully refused to produce same.

It would not be wise to rely upon the possibility of obtaining the records by means of a subpoena at about the time of the trial without first having utilized the above mentioned statutory discovery devices.

An inquiry has also been made as to the manner in which information as to improvements made by a property owner could be obtained under circumstances wherein the property owner has neglected or refused to apply for a building permit and also refuses to allow the assessor to enter upon the property. There is one reported decision wherein it was held that the “board of assessors” had the authority to issue a subpoena requiring a property owner to attend and appear before it with books, records and papers concerning the expenditure of money in respect to the construction of additional buildings, structures and other improvements (Grumman Aircraft Engineering Corporation v. Board of Assessors of the Town of Riverhead, 208 Misc. 332, 143 N.Y.S.2d 693, aff’d 1 App. Div.2d 953, 150 N.Y.S.2d 921). It should be noted that the court found an unusual and difficult situation in that case justifying the use of the subpoena power.

March 22, 1973