Opinion
Docket No. 002558-2012
09-28-2011
KC Propco, LLC v. Plainsboro Twp.
JUDGE
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE TAX COURT COMMITTEE ON OPINIONS
Maria H. Yoo, Esq.
Stavitsky & Associates
341 Broad Street
Clifton, NJ 07013
Harry Haushalter, Esq.
Lexington Square Commons
2119 Route 33, Suite A
Hamilton Square, NJ 08690
Dear Counsel:
This matter comes before the court on a motion by defendant for reconsideration of the court's denial, without prejudice, of defendant's earlier motion to dismiss the complaint for failure to provide income and expense information as required by N.J.S.A. 54:4-34 ("Chapter 91"). For the following reasons, the motion for reconsideration is denied.
It is necessary to briefly set out the history of appeals for this property, which is designated as Block 701, Lot 6 on the Plainsboro Township Tax Map. The owner of record is KC Propco, LLC, who is named as the plaintiff in the action that is currently before the court, which is the appeal of the assessment for tax year 2012. The complaint for tax year 2012 states that "the tenant KC Propco, LLC has served a copy of the enclosed complaint and case information statement on the owner KC Propco, LLC."
For the prior tax year, 2011, an appeal of the subject property was filed, naming an entity called Knowledge Learning Centers as plaintiff. The 2011 complaint included a statement to the effect that plaintiff Knowledge Learning Centers was the tenant at the subject property and had served a copy of the complaint on the owner KC Propco, LLC. See R. 8:5-3(a)(8)(requiring a tenant filing a complaint contesting a local property tax assessment on the record owner of the property). The defendant filed a Chapter 91 motion seeking dismissal of the 2011 appeal on the ground that the property owner had either failed to supply income and expense information or had supplied false income and expense information. The motion was supported by the certification of its assessor to which was appended a copy of KC Propco's response to the Chapter 91 request made in connection with the making of the tax year 2011 assessment, which was marked "100% owner occupied," with no income and expenses provided. The court granted the motion on the ground that the statement in the complaint plainly indicated that the property was not owner-occupied, but was occupied by a tenant. The court speculated that KC Propco, LLC and Knowledge Learning Centers might be related entities, but that the property owner was nevertheless obliged to respond to the Chapter 91 request. See, e.g., SKG Realty Corp. v. Wall Township, 8 N.J. Tax 209 (App. Div. 1985) (affirming the dismissal of a complaint pursuant to Chapter 91, where the property was owned by one entity and occupied by a related entity).
The motion for which defendant now seeks reconsideration was supported solely by the certification of defendant's counsel, to which was appended as an exhibit the plaintiff's response to the assessor's request for income and expense information in connection with the making of the tax year 2012 assessment. The form for the reporting of income and expense information was filled in to state the name of the owner as KC Propco, LLC, and the property name as "Knowledge Beginnings #074022." As with the prior year's response, the form was marked "100% owner occupied" and contained no further income and expense information. A copy of the court's opinion with respect to the 2011 Chapter 91 motion was also included in the motion papers.
I declined to dismiss the 2012 complaint pursuant to Chapter 91, because, unlike the motion for 2011, there was nothing in the papers before me from which I could conclude there was indisputably a tenant. While I understood that the statement in the complaint to the effect that KC Propco was both the owner and the tenant was most likely either (1) an inadvertent misstatement or (2) a device intended to avoid a Chapter 91 dismissal, there was nothing on the face of the motion papers or the complaint from which I could make that finding.
Defendant now seeks an order expediting discovery and directing a hearing for the purpose of determining if there is a tenancy at the subject property, and if there is, the relationship between the owner and the tenant.
The standards applicable to a motion for reconsideration were set out in D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.Div. 1990):
Reconsideration is a matter within the sound discretion of the Court, to be exercised in the interest of justice. A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the Court. Rather, the preferred course to be followed when one is disappointed with a judicial determination is to seek relief by means of either a motion for leave to appeal or, if the Order is final, by a notice of appeal. Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 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. Said another way, a litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process.
I conclude that there is no basis to reconsider the earlier decision and there is no basis for the court to grant the relief requested by the defendant. Defendant is, in effect, asking the court to conduct the discovery that it is perfectly capable of performing on its own. The earlier motion was denied without prejudice with the intent that defendant could, if it wished, obtain discovery on the issues of the existence of a tenancy and the relationship between the record owner and any occupant of the property. If defendant determines that the property is occupied by an entity other than the plaintiff, it is free to make a further Chapter 91 application. See R. 8:7(e), which places no time limitation for the filing of a Chapter 91 motion where the basis of the motion is a "false or fraudulent account." Lucent Technologies, Inc. v. Township of Berkeley Heights, 201 N.J. 237, 249-50 (2010).
For the foregoing reasons, the motion is denied.
Very truly yours,
Gail L. Menyuk, J.T.C.