In the Matter of Norman E. Roth, et al., Appellants,v.City of Syracuse, et al., Respondents. (And Other Proceedings.)BriefN.Y.May 1, 2013To Be Argued By: Alan J. Pierce Time Requested: 20 Minutes STATE OF NEW YORK COURT OF APPEALS In The Matter Of The Application Of NORMAN E. ROTH, STAMPEDE, LLC, STAMPEDE II, LLC, STAMPEDE III, LLC, STAMPEDE IV, LLC, STAMPEDE V, LLC, and UNIVERSITY HILL REALTY, LLC, Petitioners-Appellants, against THE CITY OF SYRACUSE, NEW YORK, THE BOARD OF ASSESSMENT REVIEW OF THE CITY OF SYRACUSE AND JOHN GAMAGE, THE COMMISSIONER OF ASSESSMENT OF THE CITY OF SYRACUSE, Respondents-Respondents, For a Review of Tax Assessments Under Article 7 Of The Real Property Tax Law. Onondaga County Index Nos.: 2001-2698, 2002-3223, 2003-2666,2004-2269 REPLY BRIEF OF PETITIONERS-APPELLANTS Dated: February 11, 2013 {HI 955638.1} Attorneys for Petitioners-Appellants HANCOCK ESTABROOK, LLP Alan J. Pierce, Esq. 100 Madison Street, Suite 1500 Syracuse, New York 13202 Tel: (315) 565-4500 Fax: (315) 565-4600 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ................................................................................ 1 COUNTER-STATEMENT OF FACTS .................................................................... 2 ARGUMENT PETITIONERS ESTABLISHED THAT THE SUBJECT PROPERTIES WERE CONTAMINATED WITH LEAD ON THE TAXABLE STATUS DATES AND THAT THEIR VALUE, AFTER SUBTRACTING THE COST TO CURE, WAS LESS THAN PETITIONERS' REQUESTED REDUCTION IN ASSESSMENT ............................................................................................... 3 A. Petitioners Established That The Subject Properties Were Contaminated With Lead Based Paint On The Taxable Status Dates .......................................................................................... 4 1. The Record In This Case, Including The City's Own Website Admissions, Supports Judge Greenwood's Finding That The Lead Based Paint Confirmed in 2008 Existed In And On The Subject Properties At The Taxable Status Dates .................................................................. 4 2. Established Case/aw Demonstrates That The Date Environmental Contamination Is Found Or Confirmed Is Often Different From When The Contamination First Existed ................................................................................ 7 B. The City Unsuccessfully Attempts To Distinguish Commerce Holding And The Extensive Caselaw Cited By Petitioners ............. 9 CONCLUSION ....................................................................................................... 18 {H1955638. l} TABLE OF AUTHORITIES Page(s) STATE CASES Allied Corp. v. Town a/Camillus, 80 NY2d 351 (1992) ....................................... 15 Bermeo v. Atakent, 241 AD2d 235 (1st Dep't 1998) .............................................. 12 Consolidated Edison Co. of N. Y. v Allstate Ins. Co., 98 NY2d 208 (2002) .............. 7 Continental Casualty Co. v. Rapid-American Corp., 80 NY2d 640 (1993) ............ 7 Cortland Pump & Equipment, Inc. v. Firemen's Ins. Co. of Newark, NJ., 194 AD2d 117 (3d Dep't 1993) ............................................................................ 7 Criscuola v. Power Auth. of the State of NY., 81NY2d649 (1993) ..................... 15 Downey v. JO Realty Co., LLC, 78 AD3d 575 (1st Dep't 2010) .............................. 7 E.1 Du Pont De Nemours & Co. v. Douglas County Bd. of Equalization, 75 P3d 1129 (Colo Ct App 2003) ........................................................................... 17 In re Nassau County Consol. MTBE Products Liability Litigation, 29 Misc3d 1219(A) (Sup Ct, Nassau Co 2010) ......................................................... 8 Inmar Associates, Inc. v. Borough of Carlstadt, 549 A2d 38 (NJ Sup Ct 1988) ...................... ········· ............................................................................. 16, 17 Matter of Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 NY2d 724 (1996) .................................................................... passim Matter of Northville Indust. Corp. v. State, 14 AD3d 817 (3d Dep't 2005) ........... 15 Mola Dev. Corp. v. Orange County Assessment Appeals Bd., 80 Cal App 4th 309 (Cal Ct App 2000) ....................................................................................... 14 Oliver Chevrolet Inc. v. Mobil Oil Corp., 274 AD2d 782 (3d Dep't 2000) .............. 9 Pan Chemical Corp v. Hawthorne Borough, 961A2d1219 (NJ App Div 2009) .................................................................................................................. 16 Serio v. Public Service Mut. Ins. Co., 304 AD2d 167 (2d Dep't 2003) .................... 8 {HJ955638.1} 11 State v. Slezak Petroleum Products, Inc., 96 AD3d 1200 (3d Dep't 2012) ............... 8 University Plaza Realty Corp. v. City of Hackensack, 624 A2d 1000 (NJ Sup Ct, App Div 1993) ........................................................................................ 14, 17 Westling v. County of Mille Lacs, 543 NW2d 91 (Sup. Ct. Minn. 1996) ............... 15 Weyerhaeuser Co. v. Easter, 894 P2d 1290 (Sup Ct Wash 1995) .................... 14, 15 ST A TE ST A TUTES CPLR 5031(e) ......................................................................................................... 12 CPLR Articles 50-A, 5 0-B ...................................................................................... 12 Public Health Law § 13 72 .......................................................................................... 1 REGULATIONS 40 CFR pt. 745 ........................................................................................................... 6 OTHER AUTHORITIES http ://inflationdata.com/Inflation/Inflation Calculators/Inflation Rate ................. 12 http://www.epa.gov/lead/pubs/renovation.htm .......................................................... 6 www.syracuseleadprogram.com ................................................................................ 5 {HI 955638.1} lll PRELIMINARY STATEMENT This Reply Brief is submitted by Petitioners-Appellants ("Petitioners") in response to the Brief of Respondents ("Respondents" or "the City"). In its Brief, the City relies almost exclusively on one argument - and repeats it over and over - in support of an affirmance: because Petitioners did not officially test for and confirm lead contamination of the subject properties until April 2008, they did not establish that the properties were contaminated with lead on the taxable status dates of January 1st of2001, 2002, 2003, and 2004. Notably, this was not the basis for Judge Greenwood's Decision. Instead, he specifically and correctly found that "an inference can be drawn that lead based paint existed in the properties during the taxable status dates because of the subsequent test in 2008 and the fact that lead based paint is no longer manufactured***." (R18a) Moreover, the City's argument requires this Court to put blinders on and ignore: (1) the Record in this case, including the City's own acknowledgement of the presence of lead based paint in houses built before 1978; and (2) applicable law on the difference between when contamination is confirmed and when it started or existed. In short, since the contamination at issue in this case is based on the presence of lead from lead based paint, which has been banned in New York since at least 1970 as a toxin (Public Health Law§ 1372), the City's argument {H1955638.1} 1 presupposes that someone came into and on the five (5) subject properties between January 1, 2001 and April 2008 when the testing occurred and applied lead based paint - that had been banned for 41 years - throughout the interiors and exteriors of the five subject properties. There was no proof of this, no finding of this by Judge Greenwood- as noted above, he made a contrary finding- and no basis for this speculative argument by the City. COUNTER-STATEMENT OF FACTS The City's Brief contains 40 pages of a Statement of Facts rather than addressing those facts with which it disagrees from Petitioners' detailed Statement of Facts. Although Petitioners do not agree with many of the City's characterizations and incomplete recitation of the facts, we will not belabor them, but will simply address those that are relevant to the legal issues presented in the Argument herein. Significantly, almost none of the so-called "facts" recited in these 40 pages of the City's Brief are discussed in the City's legal argument. {Hl955638. l} 2 ARGUMENT PETITIONERS ESTABLISHED THAT THE SUBJECT PROPERTIES WERE CONTAMINATED WITH LEAD ON THE TAXABLE STATUS DATES AND THAT THEIR VALUE, AFTER SUBTRACTING THE COST TO CURE, WAS LESS THAN PETITIONERS' REQUESTED REDUCTION IN ASSESSMENT The City's Brief attacks Petitioners' Brief on essentially two grounds. First, the City's primary argument on appeal is that because Petitioners did not have the subject properties officially tested for lead until 2008, they did not establish that the properties were contaminated with lead on the taxable status dates of January 1st of 2001, 2002, 2003, and 2004. Notably, Judge Greenwood did not make such a finding here, but specifically and correctly found that "an inference can be drawn that lead based paint existed in the properties during the taxable status dates because of the subsequent test in 2008 and the fact that lead based paint is no longer manufactured***." (R18a) The City's argument is ridiculous and requires this Court to ignore: (1) the Record in this case, including the City's acknowledgement of the presence of lead based paint in houses built before 1978; and (2) applicable law on the difference between when contamination is confirmed and when it first started or how long it has existed. The City simply ignores its own admissions on its "Lead Program" websites because they are devastating to it in this case. {81955638.l} 3 Second, the City's Brief attempts to distinguish every case cited by Petitioners based on one factor regardless of whether it is relevant to the analysis presented in this case. As fully reflected in Petitioners' Brief and demonstrated herein, this attempt is misguided and unsuccessful in addressing the clear rules of law established in the cases relied on by Petitioners. A. Petitioners Established That The Subject Properties Were Contaminated With Lead Based Paint On The Taxable Status Dates 1. The Record In This Case, Including The City's Own Website Admissions, Supports Judge Greenwood's Finding That The Lead Based Paint Confirmed in 2008 Existed In And On The Subject Properties At The Taxable Status Dates First, Petitioners provided undisputed expert proof that the lead contamination confirmed in the April 2008 testing was present on the taxable status dates in 2001-2004. When questioned by Justice Greenwood "how would the fair market be affected by lead paint contamination in [sic] 2001 taxable status date" when the extent of contamination was not confirmed until testing in 2008, Kelley testified that the lead paint contamination "was very much suspected and it certainly was present at that time [20011 as it is today and will be until it's remediated." (R409-410) (emphasis supplied) This is the only testimony and proof in this Record - and it is expert testimony - on the issue of the presence of lead from lead based paint on the taxable status dates. {HI955638.l} 4 Second, the five subject properties were all built "circa 1920." (R1847, 1963, 2084, 2203, 2322) The City has repeatedly acknowledged that lead based paint is currently present in properties built before 1978. The City's Lead Hazard Control Program website, as it existed at the time of trial in October 2008 stated, inter alia, that "lead is a hazardous material," "is found largely on painted surfaces, in soil, water and in dust," and that "[h]omes built prior to 1978 are [illegible] for lead contamination." (R2433) In addition, it stated that"[ w]ith an estimated 60% of the housing units built prior to 1940, lead is certainly an issue in this upstate city" (R2436), and "most homes built before 1960 contain heavily leaded paint, and some homes built as recently as 1978 may also contain lead paint. The current (as of September 2012) City web site (www.syracuseleadprogram.com) contains similar admissions of the current presence of lead based paint in properties built before 1978 as follows: • "Is there lead in my home? !(your house was built prior to 1978, you probably have some lead in your home" (AS, A18)1 (emphasis supplied); • "Today, lead is primarily found in houses built before 1978, since most of these houses contain leaded paint" (A13); and References to (A_) are to pages in the Appendix to Petitioners' Brief. As noted there at 57, footnote 3, this Court can and should take judicial notice of relevant government websites, including the City's website and the EPA. {81955638.l} 5 • "If you own a property built prior to 1978 (most homes in the City of Syracuse are) you may have some lead in that home!" (Al 7) The City actually uses an exclamation point in their own website to drive home the point to property 9wners that their pre-1978 buildings contain lead. Third, the City's website admissions are consistent with common knowledge and experience regarding lead based paint, all of which lead the EPA to adopt a Lead-Based Paint Renovation, Repair and Painting Rule ("RRP Rule") in 2008. See 40 CFR Part 745. EPA issued the RRP Rule to protect against the risk that "common renovation activities like sanding, cutting, and demolition can create hazardous lead dust and chips by disturbing lead-based paint, which can be harmful to adults and children. * * * It requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in pre-1978 homes, child care facilities and schools be certified by EPA and that they use certified renovators who are trained by EPA-approved training providers to follow lead-safe work practices." http://www.epa.gov/lead/pubs/renovation.htm. Thus, the RRP Rule assumes that any house built be(Ore 1978 (andpre-1978 residential building materials) contain lead-based paint unless the house has been tested (Or lead-based paint and the results indicate that the house does not contain lead-based paint. Lead Safety For Renovation Repair And Painting, EPA Course Book for Certification as Lead Paint Renovator. (A20) {Hl955638.I} 6 2. Established Case/aw Demonstrates That The Date Environmental Contamination Is Found Or Confirmed Is Often Different From When The Contamination First Existed New York courts are very familiar with "dating" environmental contamination - determining when it existed before it was discovered or confirmed to be present. That is because the trigger for insurance coverage in New York for "long-tail environmental claims" (occurring over several years) is "injury in fact" during the policy period. See Continental Casualty Co. v. Rapid-American Corp., 80 NY2d 640, 650-651 (1993) (asbestos) ("Federal courts have concluded that the 'injury-in-fact' rule is most consistent with New York law."); Downey v. JO Realty Co., LLC, 78 AD3d 575 (1st Dep't 2010) (mold) ("New York follows the 'injury- in-fact' test which 'rests on when the injury, sickness, disease or disability actually began and * * * requires the insured to demonstrate actual damage or injury during the policy period***.'"); Cortland Pump & Equipment, Inc. v. Firemen's Ins. Co. of Newark, N.J., 194 AD2d 117, 120-121 (3d Dep't 1993) (petroleum spill that started on July 1, 1989 not discovered until March 1990). This test requires New York courts to "look back" from when contamination or injury is discovered or confirmed to determine when the "injury in fact" occurred. For example, in Consolidated Edison Co. of NY. v Allstate Ins. Co., 98 NY2d 208 (2002), this Court addressed insurers' liability under insurance policies issued from 1936 to 1986 for contamination discovered in 1995 at a plant that was {Hl955638.I} 7 operated since 1873. In Con Ed, this Court applied "pro-rata allocation" to spread the liability among the policies in effect during the 50 years that the property damage occurred. Id. at 222-223; see Serio v. Public Service Mut. Ins. Co., 304 AD2d 167 (2d Dep't 2003) (pro-rata allocation of damages for lead poisoning for successive policies). One example of contamination "dating" in the oil spill context involves MTBE. Just as lead based paint was banned in New York since at least 1970, MTBE was a chemical added to gasoline in order to boost octane levels and to reduce hydrocarbon emissions first used in the early to mid-1980's until it was banned in New York on January 1, 2004 due to its affinity to contaminate groundwater. See, e.g., In re Nassau County Consol. MTBE Products Liability Litigation, 29 Misc3d 1219(A) at *1 (Sup Ct, Nassau Co 2010). Thus, ifMTBE is present in petroleum contamination found subsequent to 2004 the parties and courts know that it was discharged to the environment over a period of time leading up to no later than January 2004. See, e.g. , State v. Slezak Petroleum Products, Inc., 96 AD3d 1200 (3d Dep't 2012) (petroleum contamination discovered in October 2006 that contained MTBE determined to have resulted from post-1990 spills from underground storage tanks from nearby gasoline station operated on defendant's property since 1967); Oliver Chevrolet Inc. v. Mobil Oil Corp., 274 AD2d 782, 783 (3d Dep't 2000) (trial court's finding that underground {HI 955638.1} 8 storage tank was not source of contamination of landowner's well was supported by evidence, including expert testimony "as to the source, dating and chemical composition of the gasoline contamination found on plaintiffs property," including the presence or lack thereof ofMTBE) (emphasis supplied). In summary, the City's argument that because Petitioners did not have the subject properties officially tested for lead until 2008, they did not establish that the properties were contaminated with lead on the taxable status dates of January 1st of 2001, 2002, 2003, and 2004 is contrary to the Record herein, including the unrebutted expert testimony of Petitioners' appraiser, Kelley, and the City's Lead Program admissions, as well as applicable law and common sense. Contrary to the City's ridiculous speculation, there is no proof that someone applied lead based paint - that had been banned for at least 41 years - throughout the interiors and exteriors of the five subject properties between January 1, 2001 and April 2008 when the testing occurred. B. The City Unsuccessfully Attempts To Distinguish Commerce Holding And The Extensive Caselaw Cited By Petitioners As noted above, the City's Brief attempts to distinguish every case cited by Petitioners based on some factor regardless of whether it is relevant to the analysis presented in this case or the reason why the case was cited by Petitioners. This attempt is ultimately unsuccessful. {HI 955638.1} 9 Notably, Matter of Commerce Holding Corp. v. Board of Assessors of the Town of Babylon, 88 NY2d 724 ( 1996), involved, among other contaminants, lead. Id. at 727-728 ("A former tenant of the property performed metal plating operations on the premises and discharged wastewater containing copper, lead, cadmium, zinc and other metals into on-site leaching pools, ultimately resulting in severe subsurface contamination.") (emphasis supplied). Thus, Commerce Holding is directly relevant to the "lead" contamination in this case. The City asserts that "[t]he key element, in the case at bar, that differentiates it from*** Commerce Holding is that the properties herein were not proved to be environmentally contaminated on the taxable status dates" and that "[t]herefore" Petitioners' arguments are "off base." City Brief at 44. The City's position in this regard has been addressed above in Subpoint A. To the extent that the City is including in this statement its off-hand comment in its Brief (at 43) that "lead based paint, in and of itself, does not constitution [sic] a hazard, and only become a hazard when it starts to deteriorate, flake, chip or peel," this argument was addressed in detail in Point I.E.1 of Petitioners Brief (at pp 54-59). The actual holding of Commerce Holding cannot be overlooked: "Because environmental contamination can depress a parcel's true value, we hold that it must be considered in assessing real property tax." 88 NY2d at 727; see also id. at 729-730 ("Because environmental contamination can depress {H1955638. l} 10 a parcel's true value, *** it must be considered in assessing real property tax."). Petitioners were not required to prove that the substantial lead found in and on the subject properties was a "hazard," only a contaminant. Clearly, in New York, where "cancerphobia" and environmental "stigma" not involving an actual health "hazard" must be taken into consideration in the assessment ofreal property. the presence of substantial amounts of lead from lead based paint must be a contaminant that must also be considered in tax assessment. Even if demonstration of a "hazard" was required, the evidence here is overwhelming that lead based paint is a hazard even if it is not "flaking, chipping or peeling." See Petitioners' Brief at 30-33, 57-59. In addition, although the City mentions that Petitioners' experts used "2008 cost to cure" numbers for the 2001-2004 taxable status dates, City Brief at 42, Commerce Holding addresses that as well. In that case, tax years 1986-1987 through 1991-1992 were at issue, and petitioners' expert appraiser expert "valued the property by using an income capitalization approach" and "subtracted from the property's value in each year the total remaining cost to cure all the contamination * * * calculated in 1991 dollars, tendered back to account for inflation in each of the prior years ***."Id. at 728. The same "tender[ing] back" of the "2008 cost to cure" numbers to 2001-2004 can be done here by the Trial Court on remittitur. Petitioners addressed this issue in their Reply Brief in the Appellate Division {HI 955638.1} 11 (at pp 20-21). This inflation adjustment from when the costs to cure were determined in May 2008 (R1827.l, 1910, 1930, 1933 [Exh. 21, e.g.]) back to the taxable status dates is easy to perform through an internet calculator found at http://inflationdata.com/Inflation/Inflation Calculators/Inflation Rate Calculator.asp. As reflected in our Appellate Division Brief, when done the reduced figures that take inflation into account do not change the overall reductions in assessments requested by Petitioners. Courts are often tasked with adjusting for inflation and are familiar with making such adjustments. See, e.g., CPLR Arts.SO-A, 50-B, CPLR 503l(e); 504l(e); Bermeo v. Atakent, 241 AD2d 235 (1st Dep't 1998). The only real distinction between Commerce Holding and this case is that there the tax payor was required to remediate the property as a Superfund site, and here it is undisputed that Petitioners are not required - with one exception regarding soil contamination on one subject property (Petitioners' Brief at 14-15)- by either Federal or State law to remediate the lead found throughout the subject properties. That difference is legally irrelevant as addressed in Point LC of Petitioners' Brief. The City's Brief mentions "lead dust" on several occasions and specifically states that "[t]he properties herein were not tested for lead dust (111)." City Brief at 43, fn 6. Peter Koslowsky's testimony was that "[i]t's hard to know if it's lead {HI 955638. I } 12 dust unless you do a lead wipe" and "I did not" "do a lead wipe." (Rl 11) There is no need to "test" for "lead dust" because it occurs every day when a lead painted window or door is opened. Thus, the City's website states that "the biggest problem is lead dust*** [which] is often created during renovation or remodeling in a home when a lead painted surface is disturbed. However, a simple task like opening a window or opening a door can also create these tiny lead dust particles." (A13) (emphasis supplied) The City admits that a child can "get poisoned even if he/she doesn't actually eat paint chips" because "most cases of childhood lead poisoning are caused by lead dust as a result of hand-to-mouth contact. If floors have dust from old painted walls, windows, doors, etc, a baby could breathe in the lead dust or suck on lead-dusted hands and toys." (AS, Al 8) Most notably, the City never directly addresses the argument in Petitioners' Brief (at pp 43-47) that the legal principles of Commerce Holding are applicable where, as here, the property owner is not legally required, and has not agreed, to remediate the contamination. First, it does not contest that this principle follows from two specific holdings in Commerce Holding. Second, the City fails to argue against the explicit adoption of this specific rule in New York based on existing law in New York regarding "cancerphobia" and environmental "stigma," and the application of this rule in other jurisdictions applying Commerce Holding. Those cases include Mola Dev. Corp. v. Orange County Assessment Appeals Bd., 80 Cal {H 1955638.1} 13 App 4th 309, 321-322 (Cal Ct App 2000), University Plaza Realty Corp. v. City of Hackensack, 624 A2d 1000 (NJ Sup Ct, App Div 1993), and Weyerhaeuser Co. v. Easter, 894 P2d 1290 (Sup Ct Wash 1995). The City attempts to distinguish Mola on the grounds that it involved an "unused contaminated toxic waste site." City Brief at 49-50. This is not a proper grounds to distinguish the legal principles of Mola, which cited and followed Commerce Holding, that are relevant in this case. With respect to University Plaza, the City argues that the taxpayer's voluntary removal of asbestos was only allowed because it "demonstrated that the asbestos had significantly affected its lease negotiations and vacancy rates." City Brief at 46. This was not the basis for the court's decision, but was recited in the facts simply as the reason why the property owner had voluntarily undertaken the cleanup. 624 A2d at 1001. Finally, the City attempts to distinguish Weyerhaeuser on the grounds that there "the cleanup costs were a process of business necessity." City Brief at 50. In Weyerhaeuser, the Washington Supreme Court affirmed a determination that the costs of removing asbestos in the amount of $18.3 million from the mill under two cleanup projects, which was not mandated or required by law, reduced the value of the mill and reduced the tax assessment accordingly. Although the court noted that "Weyerhaeuser approved both projects as a perceived business necessity," it did {H 1955638.1} 14 not hold that such was required. 894 P2d at 1293. Contrary to the City's Brief (at pp 44-45, 49), Matter of City of Syracuse !DA (A/term, Inc.), 20 AD3d 168 (4th Dep't 2005), Matter of Northville Jndust. Corp. v. State, 14 AD3d 817 (3d Dep't 2005), and other cases were not cited by Petitioners because this case also involves "condemnation awards * * * to be reduced by the cost to remediate the existing contamination." A/term, like several other cases, was cited by Petitioners for the undisputed rule that environmental "stigma" must be considered in the assessment of properties even when the property has been completely cleaned up or no finding of contamination has been made. See Commerce Holding, 88 NY2d at 732 ("the stigma remaining after cleanup"); Allied Corp. v. Town of Camillus, 80 NY2d 351, 356 (1992) ("the 'stigma' attached to environmentally damaged land in the eyes of any potential buyers"); Westling v. County of Mille Lacs, 543 NW2d 91, 93 (Sup. Ct. Minn. 1996) (cited with approval in Commerce Holding) (stigma discount alone for environmental contamination to improved commercial real property supported finding that property has $0 market value for tax purposes, although the property generated $144,000 in annual rent); Criscuola v. Power Auth. of the State of NY., 81 NY2d 649 (1993) (claimants were entitled to recover damages for the diminution in value of 94 acres resulting from "cancerphobia" rather than an actual health hazard requiring remediation). {Hl955638.l} 15 Of course, Petitioners did not cite several personal injury lead paint cases or cases involving violations of the New York City Code because either is involved here. See City's Brief at 47-48, 49. These cases were clearly cited for the proposition that the contamination of property by underground toxins, asbestos, and lead-based paint are legally the same and there is no basis to distinguish between such contaminants in the valuation of real property. See Petitioners' Brief at 47-53. Petitioners' point is also well made by the fact that lead was one of the primary contaminants at issue in Commerce Holding. The City further attempts to distinguish many of Petitioners' cited cases again only on the grounds that here Petitioners did not "show contamination on the taxable status dates." City Brief at 48. This issue has been addressed. Finally, the City cites two cases for the proposition that in both "the courts held that no devaluation for contamination applied when there was no government required cleanup and the property was in use." See Pan Chemical Corp v. Hawthorne Borough, 961 A2d 1219, 1226 (NJ App Div 2009); Inmar Associates, Inc. v. Borough of Carlstadt, 549 A2d 38, 46 (NJ Sup Ct 1988). Pan Chemical relies exclusively on Inmar, and a rule that so long as a property is still in use at the time of the assessment, no matter how little, it cannot receive a reduction in assessment at all of even substantial environmental contamination. This is not the law in New York, and may well not be the law in New Jersey either. {HI 955638.1} 16 Notably, Jnmar was not followed by Mola, University Plaza, and E.J. Du Pont De Nemours & Co. v. Douglas County Bd. of Equalization, 75 P3d 1129 (Colo Ct App 2003). In affirming an award in favor of the property owner in University Plaza, cited and relied on here by Petitioners, the New Jersey Appellate Division noted that "[a]lthough it recognized the Supreme Court's opinion in lnmar Associates * * *, the Tax Court here concluded that the absence of government mandated remediation, i.e., the 'regulatory neutrality' of this case, presented a markedly different valuation picture from those cases." 624 A2d at 1001-1002. The court further noted that "[i]nlnmar, the [Supreme] Court speculated that '[b]y imposing on current and past owners and users of land the cost of restoring the land, the regulatory programs perhaps have shifted costs but not values. Had government remained indifferent to the problem, it might better be argued, as Inmar contends, that the land is indeed worthless * * *.' " Id. at 1002, fn 2, quoting Jnmar (emphasis supplied). {HI 955638.1} 17 CONCLUSION For all the foregoing reasons, Petitioners-Appellants respectfully request that this Court issue an Order reversing the Appellate Division Order brought up for review, and either grant Petitioners the reductions in assessments of the subject properties requested or remand this matter to Supreme Court for further proceedings consistent with this Court's decision, together with such other and further relief as to the Court seems just and equitable. Dated: February 11, 2013 {HI 955638.1} 18 Respectfully Submitted By: Attorneys for Petitioners-Appellants By: 100 Madison Street, Suite 1500 Syracuse, New York 13202 Tel: (315) 565-4500 Fax: (315) 565-4600