In the Matter of Mehran Manouel, et al., Appellants,v.Board of Assessors, et al., Respondents.BriefN.Y.January 15, 2015To Be Argued By: CHRISTOPHER P. BYRNES Time Requested: 15 Minutes APL-2014-00035 Nassau County Clerk’s Index No. 5790/2011 Court of Appeals STATE OF NEW YORK MEHRAN & SEPIDEH MANOUEL, Petitioner-Appellant, —against— THE BOARD OF ASSESSORS and THE ASSESSMENT REVIEW COMMISSION OF THE COUNTY OF NASSAU, Respondents-Respondents. BRIEF FOR PETITIONER-APPELLANT d CHRISTOPHER P. BYRNES, ESQ. SCHRODER AND STROM, LLP 114 Old Country Road, Suite 218 Mineola, New York 11501 (516) 742-7430 Attorneys for Petitioner-Appellant April 18, 2014 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . 4 A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. The Small Claims Assessment Review Hearing . . . . . . . . . . . . . . . . . . 4 C. The Article 78 Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Supreme Court Order dated December 20, 2011 . . . . . . . . . . . . . . . . . 7 E. The Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Small Claims Assessment Review is Remedial In Nature, And Its Jurisdictional Prerequisites Are To Be Liberally Construed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. The Legislative Intent of the Owner-Occupancy Requirement is to Keep Landlords of Income-Producing Residential Properties From Availing Themselves of the Inexpensive SCAR Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 D. Judicial Economy Favors SCAR as the Preferred Forum to Resolve Assessment Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ii TABLE OF AUTHORITIES PAGE Cases In Matter of Aerotech World Trade Ltd v. Excalibur Systems, Inc., 236 AD 2d 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Matter of Andros Cia Maritima, S. A.(Marc Rich & Co, A.G.,), 579 F2d 691 (2d Cir 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Matter of Delaware & Hudson Railway Co. v. McDonald, 126 A.D.2d 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 Matter of Great Eastern Mall, Inc. v. Condon, 36 N.Y.2d 544 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Matter of Masters v. Board of Assessors, 188 A.D.2d 471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 14 Matter of McNamara v. Board of Assessors of the Town of Smithtown, 272 A.D.2d 617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Matter of Meola v. Assessor of the Town of Colonie, 207 A.D. 2d 593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Matter of Regenstreif v. Board of Assessors, 20 Misc. 3d 787 (Sup. Ct. Nassau County 2008) . . . . . . . . . . . . . . . 13, 14, 15 Matter of Troy Properties v. Dimitriadis, 56 A.D.3d 1086 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Nachman v. Jenelo Corp, 25 AD3d 593, (2nd Dept, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Town of New Castle v. Kaufmann, 72 N.Y.2d 684 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10 Town of Tonawanda v. Ayler, 68 N.Y. 2d 836 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 PAGE iii Statutes Article 78 of the CPLR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim RPTL Article 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 RPTL Article 7, Title 1-A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9 RPTL § 730 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 RPTL § 730(1)(b)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 12, 13 RPTL § 730(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 RPTL § 736(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Other Authorities Report of the Temporary State Commission on Real Property Tax, (Bill Jacket, L 1981, ch 1022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 PRELIMINARY STATEMENT In a proceeding commenced pursuant to Civil Practice Laws and Rules (hereinafter “CPLR”) Article 78, Petitioners-Appellants MEHRAN & SEPIDEH MANOUEL (“the Homeowners” or “the Manouels”) submit this brief in support of their appeal from an Order of the Appellate Division, Second Department dated November 13, 2013, which affirmed a decision of the Supreme Court, Nassau County (Brandveen, J.), entered December 20, 2011, which held that a residence owned by the Manouels does not qualify for Small Claims Assessment Review (hereinafter “SCAR”). The sole issue to be decided in this appeal is the construction of the phrase “owner-occupied” for the purposes of SCAR jurisdiction. This Court has long held that in order to effectuate the legislative intent of SCAR, (i.e. to provide quick and efficient relief to homeowners who suffer from excessive or unequal assessments), the jurisdictional prerequisites such as owner-occupancy should be construed liberally. In the leading case where SCAR jurisdiction was at issue before this court, a property was found to be “used exclusively for residential purposes” (another jurisdictional prerequisite for SCAR), despite the fact that it was partially used for commercial purposes - i.e. as a psychiatric office. Here, the subject property is the residence of appellant Mehran Manouel’s mother. If the standard for owner- 1 occupancy is applied liberally to include close relatives of the owner, then this property should be jurisdictionally eligible. The Appellate Division, in holding that the words “owner-occupied” are to be strictly construed, has departed from this longstanding precedent of liberal construction. Moreover, the decision appealed from implies that a different canon of construction is indicated depending on which of the jurisdictional prerequisites for SCAR is being construed; i.e liberal construction for the residential requirement, and strict construction for the owner-occupancy requirement. Finally, the precedent set by the Appellate Division in the instant case effectively leaves taxpayers in the Manouels’ situation with no efficient forum to challenge an inequitable property tax assessment. In effect, they are left with the Hobson’s choice of filing a formal tax certiorari appeal in Supreme Court or suffering from an excessive or unequal tax assessment. For the vast majority of homeowners, a traditional tax certiorari proceeding is simply not a viable option. Based on the foregoing, the Judgment appealed from should be reversed, and the Article 78 Petition should be remanded to the Trial Court with direction to vacate the Small Claims Assessment Review decision and remand the SCAR Petition to a new Hearing Officer for a de novo hearing on the merits. 2 QUESTION PRESENTED Is the Appellants’ home owner-occupied for the purposes of Small Claims Assessment Review jurisdiction based on the occupancy of their close relative? The Appellate Division answered in the negative. 3 4 FACTUAL AND PROCEDURAL BACKGROUND A. Introduction The Manouels are the owners of a single-family residence located at (hereinafter Athe subject property@), which is designated on the Nassau County Tax Map as (R. 9).1 The subject property is occupied by the mother of appellant Mehran Manouel (R. 8). Mrs. Manouel does not pay rent in exchange for the use of this premises (R. 9). On or about April 17, 2010, the Manouels, through counsel, filed a SCAR Petition pursuant to RPTL Article 7, Title 1-A challenging the 2010/11 assessed value of the subject property on the grounds of Unequal Assessment and Excessive Assessment (R. 9, R. 14). A hearing on the SCAR Petition took place December 1, 2010 before Hearing Officer Katherine Nerko, Esq. (R. 9). B. The Small Claims Assessment Review Hearing 1 Numbers in parentheses (AR. __@) refer to page numbers in the Record on Appeal. At the outset of the hearing, Respondent Nassau County (hereinafter Athe County@) objected to the eligibility of the subject property for SCAR by alleging that the home is not owner-occupied, which is a jurisdictional prerequisite for SCAR (R. 8, 10). In response to this objection, the Homeowners presented the affidavit of Mehran Manouel proving that his mother resides at the subject property without paying rent (R. 10, 19). Additionally, the homeowners submitted a Memorandum of Law explaining that under controlling case law, the subject property meets the statutory definition of owner-occupied (R. 20). Specifically, the homeowners argued that the SCAR owner-occupancy requirement should be construed liberally, and that a house retains its owner-occupied character when a relative of the owner resides at the premises free-of-charge (R. 20-21). The Homeowners also asserted that the purpose of the owner-occupancy requirement is to exclude only rental properties from SCAR (R. 20-21). Since the subject is not an income-producing property, it was properly brought within the SCAR forum (R. 20-21). The County responded by letter dated December 6, 2010, alleging that the SCAR owner-occupancy requirement should be rigidly applied to exclude the subject property (R. 10, 22-23). On December 17, 2010, the Hearing Officer rendered a written decision dismissing the SCAR Petition on the grounds that the subject property is not owner- occupied (R. 24-25). In her decision, the Hearing Officer adopted the County’s position that the owner-occupancy requirement is not satisfied by the occupancy of a relative of the homeowner. 5 C. The Article 78 Petition By Notice of Petition and Verified Petition dated April 18, 2011, the Manouels commenced this proceeding (R. 7-13). In their Petition, the Manouels reasserted that the owner-occupancy requirement should be construed liberally to include a relative of the owner. The Petition asserts that due to the Hearing Officer’s misinterpretation of controlling case law, her decision lacks a rational basis, and should therefore be vacated (R. 11). By Notice of Motion dated September 28, 2011, the County moved to dismiss the Petition (R. 26-27). The County submitted an Affirmation in Support of Motion in which it took the position that the facts of the instant matter are distinguishable from the controlling case law (R. 28-34). Specifically, the County argued that a relative of the owner only satisfies the owner-occupancy requirement when the subject property is for sale, and the living arrangement is temporary (29). The County further argued that income production has no bearing on whether a property qualifies for SCAR (R. 30-31). The affirmation pointed out that some income-producing properties do qualify for SCAR (R. 30). Specifically, the County argued that two- or three- family houses which are partially owner-occupied would qualify for SCAR , even if the non owner-occupied portions were rented and income producing (R. 30-31). 6 Finally, the County argued that the plain meaning of the words “owner- occupied” should be strictly construed to exclude the subject property from SCAR (R. 32). The Manouels replied by Affirmation dated October 17, 2011 reiterating in greater detail their position that the subject property is owner-occupied (R. 35-43). D. Supreme Court Order dated December 20, 2011 In a Short Form Order, Judge Brandveen recounted the legal arguments made by both sides (R. 4-6). The Court then concluded that the Hearing Officer’s decision had a rational basis, and dismissed the Petition in its entirety (R. 4-6). The Order was entered on December 20, 2011 (R. 3). The Manouels were served with Notice of Entry on January 9, 2012. (R. 3) E. The Appeal The Appellate Division affirmed the decision of the Supreme Court, holding that a court may not depart from the plain meaning of statutory language. The Court determined that under controlling case law, the owner-occupancy requirement is satisfied by the occupancy of a relative of the owner only if the living arrangement is temporary. The instant appeal ensued by permission of this Court. 7 ARGUMENT THE HEARING OFFICER’S DECISION LACKED A RATIONAL BASIS BECAUSE THE SUBJECT PROPERTY QUALIFIES FOR SMALL CLAIMS ASSESSMENT REVIEW. A. Applicable Law SCAR is an expedited assessment review process that is available to the owners of real property that is “improved by a one, two or three family owner-occupied structure used exclusively for residential purposes”. RPTL § 730(1)(b)(i). It is a remedial proceeding designed to afford speedy and inexpensive relief to homeowners seeking review of their property tax assessments. Town of New Castle v. Kaufmann 72 N.Y.2d 684 (1988). A Petitioner in a SCAR proceeding may seek judicial review of a Hearing Officer’s determination pursuant to Article 78 of the CPLR. RPTL § 736(2). When a Hearing Officer’s determination in a SCAR proceeding is contested, the Supreme Court’s role is to ascertain whether or not such determination has a rational basis. See, Matter of McNamara v. Board of Assessors of the Town of Smithtown, 272 A.D.2d 617, 617 (App. Div 2d Dep’t 2000); Matter of Meola v. Assessor of the Town of Colonie 207 A.D. 2d 593, 594 (App. Div 3d Dep’t 1994). 8 As demonstrated below, the Hearing Officer’s decision to disqualify the Manouel’s home was based on an error of law (i.e. an overly restrictive construction of the SCAR jurisdictional prerequisites), and therefore lacked a rational basis. B. Small Claims Assessment Review is Remedial In Nature, And Its Jurisdictional Prerequisites Are To Be Liberally Construed Article 7 of the RPTL provides two avenues of redress to property owners who wish to challenge a tax assessment. At issue in this appeal is RPTL Article 7, Title 1-A, otherwise know as Small Claims Assessment Review. In general, RPTL Article 7 is a remedial statute. Matter of Great Eastern Mall, Inc. v. Condon, 36 N.Y.2d 544 (1975); Matter of Troy Properties v. Dimitriadis, 56 A.D.3d 1086 at 1088 (3d Dep’t 2008); Matter of Delaware & Hudson Railway Co. v. McDonald, 126 A.D.2d 29 at 34 (3d Dep’t 1987). Due to its remedial nature, it should “be liberally construed in favor of affording judicial review”. Delaware & Hudson Railway Co., 126 A.D.2d 29 at 34; Troy Properties, 56 A.D.3d 1086 at 1088. In particular, this Court has long held that a liberal construction should be afforded to SCAR’s jurisdictional prerequisites. Kaufmann, 72 N.Y.2d 684. The sole issue in this appeal is the construction of the phrase “owner-occupied” for the purposes of SCAR jurisdiction. RPTL § 730(1)(b)(i). As noted above, the 9 subject property in this appeal is owned by the Manouels and occupied by their close relative; i.e., the mother of appellant Mehran Manouel. Given the flexibility afforded to the construction of SCAR’s jurisdictional prerequisites, the “owner-occupied” requirement should be deemed satisfied by the occupancy of Mrs. Manouel. Similar to the instant matter, in Kaufmann, 72 N.Y.2d 684, a homeowner sought to avail himself of a SCAR proceeding to challenge his tax assessment. There, a portion of his home was utilized as a psychiatric office. On its face, his property was not “used exclusively for residential purposes” pursuant to RPTL § 730(1)(b)(i); however, in finding that his property qualified for SCAR, this Court held that: “Generally, statutes are to be construed according to the ordinary meaning of their words when the language is unambiguous and its meaning unequivocal. When such a construction would thwart the settled purposes of the statute, however, literal and narrow interpretations should be avoided. A review of the history of RPTL 730 indicates that a narrow construction of the disputed language in this case would deny expedited and inexpensive review to homeowners and thus frustrate statutory objectives” 72 N.Y.2d at 686. (emphasis added)(internal citations omitted) Similarly, in the instant case, a literal and narrow construction of the phrase owner- occupied would exclude the subject property from SCAR, thus denying expedited and inexpensive review to the Manouels. This result would contravene the objectives of SCAR, and set a precedent where homeowners such as the Manouels are 10 pragmatically barred from correcting an excessive or unequal property tax assessment. See, Town of Tonawanda v. Ayler, 68 N.Y. 2d 836, 838 (1986) (outside of SCAR, the procedure to review tax assessments is prohibitively expensive for the owners of one- two- and three- family homes). Following the directive set forth by this Court in Kaufmann, the Second Department has previously acknowledged that a property can qualify for SCAR even when it is occupied by someone other than the owner. In Matter of Masters v. Board of Assessors, 188 A.D.2d 471 (2d Dep’t 1992), the petitioner sought review of his property tax assessment in SCAR. There, the homeowner was attempting to sell his property, and allowed his father-in-law to reside there on a rent-free basis for the period of time that the house was on the market. Id. During the relevant time period, the owner resided elsewhere. Id. Although, strictly speaking, that property was not “owner-occupied”, the Second Department found that it nonetheless qualified for SCAR. 188 A.D. 2d at 472 (“To hold that it lost its owner-occupied character because of the owner's temporary inability to sell it would run counter to the clearly-expressed intent of the Legislature”.) In the instant matter, the decisions of the SCAR Hearing Officer, Supreme Court, and Appellate Division all focused on the temporary nature of the situation in Masters in finding it to be distinguishable. In doing so, the focus was unduly shifted 11 to the idiosyncratic set of circumstances in the Masters case in place of the controlling legal principle for which Masters stands, which is to afford a broad interpretation to the jurisdictional prerequisites of SCAR. Although the subject property herein is not, strictly speaking, occupied by the owner, the close familial relationship between the owners and occupant, coupled with the fact that there is no rent charged for the use of the premises, should satisfy a broad definition of the words “owner-occupied.” Moreover, because the decision appealed from holds that the owner-occupancy requirement should be strictly construed, it implies that a different canon of construction is indicated depending on which words (all contained within a single sentence) of RPTL § 730(1)(b)(i) are being construed; i.e., liberal construction for the “residential” requirement, and literal and narrow construction for the “owner occupied” requirement. Such a distinction is patently arbitrary. Thus, by reading the owner-occupancy requirement so strictly as to disqualify the subject property from SCAR, the courts below acted in an arbitrary and capricious manner, and committed reversible error. 12 C. The Legislative Intent of the Owner-Occupancy Requirement is to Keep Landlords of Income- Producing Residential Properties From Availing Themselves of the Inexpensive SCAR Forum. The most concise test for owner-occupancy under RPTL §730(1)(b)(i) is whether or not a property generates rental income. Matter of Regenstreif v. Board of Assessors, 20 Misc. 3d 787, 790-792 (Sup. Ct. Nassau County 2008)(LaMarca, J.). In Regenstreif, title to the subject property was held by a single-member limited liability company. The LLC’s sole member brought an action in SCAR to reduce his assessment, which was subsequently dismissed by the Hearing Officer as jurisdictionally ineligible. Although the Supreme Court found that the Petitioner had not exhausted his administrative remedies and affirmed dismissal, in its review of the relevant law, it noted that “the clear import of the term ‘owner-occupied’ was to exclude from consideration those properties which were held for their ability to generate income from rental.” Id. In Regenstreif, Judge LaMarca’s reading of the owner-occupancy requirement can be clearly linked to the legislative history of RPTL § 730. The jurisdictional restrictions on this statute - including owner-occupancy- were enacted to “make this procedure administratively feasible, but ... not so restrictive as to diminish the review afforded to an aggrieved taxpayer.” See, Report of the Temporary State Commission 13 on the Real Property Tax, (Bill Jacket, L 1981, ch 1022). Clearly, this restriction was enacted to prevent the large class of residential landlords from flooding the SCAR forum with appeals, when the income generated from rental can be used to prosecute a traditional tax certiorari appeal. It was not intended to restrict the comparatively tiny class of homeowners who generously pass the beneficial use of their property to a relative without financial remuneration. Here, the Petitioners’ Affidavit confirms that the subject property does not generate rental income, which was not disputed by the County. Accordingly, Petitioners have met the threshold test for owner- occupancy, and the Hearing Officer’s decision to disqualify the Petition lacked a rational basis. The County argued below that income production is irrelevant to SCAR jurisdiction because income producing two- and three- family properties that are partially rented and partially owner-occupied would qualify for SCAR. The Regenstreif rule would not exclude owner-occupied two- and three- family houses with tenants, because the income production from such properties is typically ancillary to its primary function as the homeowner’s residence. Therefore, they are not, per se “held for their ability to generate income from rental.” Regenstreif, 20 Misc. 3d 787, 791. Finally, in 2003, the Legislature enacted RPTL § 730(9) (since repealed), 14 which expanded SCAR jurisdiction to include properties that were held in trust. Both the SCAR decision and the County’s opposition papers to the Article 78 Petition cite to this fact as evidence that the Legislature did not intend for homeowners in the Manouel’s circumstances to avail themselves of SCAR. This is a logical fallacy; the Legislature’s intent to include one class of homeowners in SCAR does not necessarily imply that it intended to exclude any other class of homeowner. Other possible conclusions can be drawn. For example, in Regenstreif, the court noted that by enacting RPTL § 730(9) the Legislature indicated a desire to expand, rather than contract SCAR jurisdiction. Regenstreif, 20 Misc. 3d 787, 791. D. Judicial Economy Favors SCAR as the Preferred Forum to Resolve Assessment Disputes It has been a distinctive and consistent philosophy of the American court system to encourage and sustain alternatives to litigation and involvement in the courts. A prime example of this encouragement and the means to obtain that “out of court” resolution of disputes is that of arbitration. The New York Courts have long been a champion of arbitration, reasoning that such is a faster and more efficient method of resolving disputes while, at the same time, relieving the courts and litigants from the heavy burden of certain types of litigation. In Matter of Aerotech World 15 Trade Ltd v. Excalibur Systems, Inc., 236 AD 2d 609, (2d Dep’t 1997), it was clearly stated that “New York public policy favors arbitration”. Indeed, the rule is that where there is a mandatory arbitration clause in a particular case, “[t]he Supreme Court had no authority” Nachman v. Jenelo Corp, 25 AD3d 593, (2 Dept, 2006). Put anothernd way, where there is an avenue to avoid litigation, that option must be utilized. A clear parallel can be drawn between arbitration and the SCAR proceedings that are the subject at issue before this Court. Rather than being required to draft, file and serve an Article 7 proceeding, with all the attendant complications and expense, to wit: hiring of an attorney and retention of a real estate appraiser, the procedure is streamlined and relatively inexpensive, and a layperson may present his/her case, without rules of evidence, before a trained hearing officer. Similarly, an arbitration award is upheld when there was “. . . a barely colorable justification for the outcome reached [by the arbitrator]” Matter of Andros Cia Maritima, S. A.(Marc Rich & Co, A.G.), 579 F2d 691, 704 (2d Cir 1978), thus underlining the judicial preference for a sometimes informal equitable approach to a non-judicial system of dispute resolution. In other words, the efficiencies created by SCAR are two-fold: the homeowner is provided with an fast and inexpensive forum to review a property tax assessment, and the Courts are spared a formal lawsuit on the docket. 16 Accordingly, the superiority of the statutory SCAR process must be upheld in the case at bar, where there is no clear bar to the relief sought by petitioners. CONCLUSION For the foregoing reasons, the Order of the Appellate Division, Second Department, dated November 13, 2013, which affirmed a decision and order of the Supreme Court, Nassau County (Brandveen, J.) Dated December 16, 2011 and entered December 20, 2011, which dismissed the instant Article 78 Petition should be reversed, and the Article 78 Petition should be remanded to the Trial Court with direction to vacate the Small Claims Assessment Review decision and remand the SCAR Petition to a new Hearing Officer for a de novo hearing on the merits. Dated: Mineola, New York April 18, 2014 Respectfully Submitted, SCHRODER & STROM, LLP Counsel to Petitioners-Appellants MEHRAN & SEPIDEH MANOUEL By: _____________________________ Christopher P. Byrnes 114 Old Country Road, Suite 218 Mineola, New York, 11501 (516) 742-7430 17 /s/ Christopher P. Byrnes