Legal Document: Jose Garcia v. Newburgh Town Of

On July 27, 2021 a EXHIBIT(S) - E - SCAR Manual was filed involving a dispute between Jose Garcia, and Newburgh Town Of, for Other Real Property - SCAR in the District Court of Orange County.

Preview
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

SMALL CLAIMS ASSESSMENT REVIEW PROGRAM

SCAR
HEARING OFFICERS’ MANUAL
New York State
January 2008

Small Claims Assessment Review Program
25 Beaver Street, 8th Floor
New York, NY 10004
212-428-2120
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

TABLE OF CONTENTS

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Jurisdictional Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Limitations on the Requested Reduction in Assessment . . . . . . . . . . . 7

The Petition and Pre-Hearing Procedure . . . . . . . . . . . . . . . . . . . . . . . 8

The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Effect of a Grant of Reduction - The One Year Freeze Provision. . . 17

Ethical Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

THE SMALL CLAIMS ASSESSMENT REVIEW (“SCAR”) PROGRAM

BACKGROUND

The Legislature enacted the statutory provisions governing SCAR proceedings in 1982 to
provide owners of 1, 2 or 3 family owner-occupied dwellings, or owners of properties
that are unbuildable, an opportunity to challenge the assessment on their properties. It is
designed to be an inexpensive alternative to the more formal tax certiorari proceeding
found in RPTL Article 7. The statute (RPTL §§ 729-739) provides for timely review in
an informal small claims setting of an administrative determination denying a property
owner’s real property tax grievance by a SCAR Hearing Officer for a minimal filing fee
of $30.00.

JURISDICTIONAL REQUIREMENTS

1. As a general rule, to qualify for an appeal pursuant to SCAR, the property must be
owner-occupied on the taxable status date. The property must either (1) be
improved by a one, two, or three family, owner-occupied residence used
exclusively1 for residential purposes, or (2) be unimproved, if according to the
assessing unit or special assessing unit2 the property is not of sufficient size to
contain a one, two or three family residential structure (i.e., an unbuildable lot).
Outside NYC and Nassau County, condominiums classified as homestead
properties qualify for SCAR (9 Op. Counsel SBEA No. 3). Class One
condominiums in NYC and Nassau County qualify as property subject to a SCAR
proceeding. Class One condominiums are buildings with less than three stories
that were not converted from rental or cooperative use.

1
Nonresidential use of the property does not necessarily disqualify the property from
SCAR treatment. In Matter of Town of New Castle v Kaufmann (72 NY2d 684 [1988]), the
property owner, a psychiatrist, had dedicated a small portion (17.5% of total gross floor area of
the first floor) of his residence to use as a professional office to treat patients. The office was
used for a period of ten hours during the seven months prior to the filing of the SCAR
proceeding. Reviewing the legislative history of the statute, the New York Court of Appeals
held that, despite the occasional and incidental nonresidential use, the property was being used
exclusively for residential purposes within the meaning of RPTL § 730(1)(b)(I). It is important
to note that the Court’s decision did not turn on the amount of floor area or the number of hours
the office had been in use. Instead, it was the occasional and incidental use for nonresidential
purposes that was the determining factor.
2
However, in some jurisdictions (e.g., Nassau County) the assessing unit does not control
the zoning requirements, and, therefore, has no say in whether or not a particular parcel is
buildable.

2
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

Petitioners are limited to one parcel, which is defined as a separately assessed lot,
parcel, piece or portion of real property (“assessed unit”), per SCAR petition
(RPTL § 730[5]; RPTL 102[11]). Thus, an owner may not seek to combine two
or more separately assessed units and treat them as one assessed unit for purposes
of a single SCAR proceeding (Matter of Kline v City of Rye, 150 AD2d 576
[1989], lv denied 74 NY2d 614 [1989]).

Property owned by a corporation or partnership does not qualify for SCAR
treatment since a corporation or partnership cannot occupy a residence (8 Op.
Counsel SBEA No. 93).

A mixed use structure (e.g., a residence above a storefront) does not qualify for
SCAR treatment (Matter of Town of New Castle v Kaufmann, 72 NY2d 684, 687
[1988]). However, a mixed use parcel – a parcel used for commercial purposes
that is also improved by a residential structure (e.g., a farm) – qualifies for SCAR
treatment, but the review is limited to the portion of the parcel used for residential
purposes (9 Op. Counsel SBEA No. 43).

Owner-occupied does not mean that the residence must be the owner’s primary
residence (i.e., year-round occupancy is not a requirement) or even that the
residence was occupied on the taxable status date.

• Vacation homes and other seasonal residences qualify as long as the
residence is owner-occupied during its period of use (7 Op. Counsel
SBEA No. 80).

• Residential property that was owner-occupied on the taxable status date,
but later becomes vacant, qualifies for SCAR treatment (9 Op. Counsel
SBEA No. 94).

• A petitioner may not bring a SCAR proceeding with regard to a house
under construction (9 Op. Counsel SBEA No. 122; Matter of Tyrrell v
Town of Greenville, 108 AD2d 1092 [1985]).

• A person other than the property owner may be residing in the property
and the property may qualify for SCAR treatment provided that the person
occupying the premises is not paying rent. In Matter of Masters v Board
of Assessors (188 AD2d 471 [1992]), petitioner moved into the new home
he had purchased in 1987, but because he had been unable to sell his prior
home, he allowed his father-in-law to live in the house free of charge until
its sale in 1989. In that case, the Appellate Division, Second Department
held that the occupancy of the house by petitioner’s father-in-law did not
cause the property to lose its owner-occupied status.

3
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

• Because an assessment is levied against the land and not the owner, a new
owner may continue a SCAR appeal even if the SCAR petition and/or
original complaint for administrative review of the assessment before the
Board of Assessment Review had been filed by the previous homeowner
(see People ex rel. Ambroad Equities, Inc. v Miller, 289 NY 339 [1942];
People ex rel. Bingham Operating Corp. v Eyrich, 265 AD 562 [1943], lv
denied 266 AD 803 [1943]). However, a new authorization may be
required pursuant to RPTL § 730(6).

• With regard to the owner occupied status of property held pursuant to a
trust instrument, the statute provides “[w]here real property is held in trust
solely for the benefit of a person or persons, such person or persons may
be deemed to be the owner or owners of such property for the purposes of
this title” (RPTL § 730[9]).

2. Filing and Service Requirements

Filing Requirements: The property owner, or his or her predecessor-in-interest,
must have first filed a complaint for administrative review of the assessment (the
“grievance”) pursuant to the provisions of RPTL § 730(1)(a) and local law. A
petitioner’s failure to first file a grievance with the Board of Assessment
Review (and in Nassau County and NYC, the Assessment Review
Commission) is fatal and requires dismissal of the petition.

The property owner, or his or her authorized representative,3 must file with, or
mail to, the County Clerk’s Office in the county in which the property is located,
three copies of the SCAR petition. This must take place within 30 days of the
completion and filing of the final assessment roll (RPTL § 730[3]). The
“[f]ailure to file the petition within such time shall constitute a complete
defense to the petition and the petition must be dismissed” (RPTL § 730[3];
Matter of Dolan v City of New Rochelle, Index No. 2679/84 [Sup Ct Westchester
County 1984]).

The date of the completion and filing of the final assessment roll is
defined as the date that is provided by law as the last day for the filing of
the assessment roll or until notice of the filing has been given as required

3
The petition may be completed by any person with knowledge of the facts stated in the
petition provided (1) the person has obtained the property owner’s written authorization, (2) the
date of the authorization is within the same calendar year in which the grievance is filed, and (3)
the authorization is made a part of the petition (RPTL § 730[6]).

4
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

by law, whichever date is later (RPTL § 730[3]).

The 30 day period starts the day after the date of the filing of the final
assessment roll and runs for 30 consecutive days, including weekends and
holidays. If the 30th day falls on a weekend or holiday, then the petition
must be filed by the next business day (General Construction Law § 25-a).

Service Requirements: Pursuant to RPTL § 730(8), within ten (10) days of the
filing of the SCAR petition, petitioner must mail (and with regard to service on
the Clerk of the Assessing Unit, petitioner must either mail by certified mail,
return receipt requested, or personally deliver) a copy of the SCAR petition to
the following entities:

(1) The Clerk of the assessing unit named in the petition, or if there is no such
Clerk, to the officer who performs the customary duties of that official.
(NOTE: ONLY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED SATISFIES THE SERVICE BY MAIL
REQUIREMENT FOR SERVICE ON THIS ENTITY);

(2) The Assessor or Chairman of the Board of Assessors of the assessing unit
named in the petition;

(3) The Clerk of the school district (and if there is no Clerk or if the name and
address of the Clerk are unavailable, then service may be made on a
trustee), if the school district uses the assessment for tax purposes;

(4) The County Treasurer; and

(5) The Clerk of a Village that has enacted a local law pursuant to RPTL §
1402(3) if the assessment to be reviewed is on a parcel located within such
Village.

Petitioner’s failure to comply with the 10-day service requirement should
ordinarily result in the petition’s dismissal (see Matter of Dolan v City of New
Rochelle, Index No. 2679/84 [Sup Ct Westchester County 1984]). However, a
limited exception to the 10-day service requirement appears to have been
recognized so long as petitioner personally serves the Clerk of the assessing unit
named in the petition within the period of time that it would have received the
petition had it been served by mail. In this regard, at least two Supreme Court
decisions have held that the SCAR proceedings should not be dismissed based
upon untimely service (i.e., personal service on the 11th day) since the assessing
unit actually received the petition earlier than it would have if it had been mailed
and, therefore, was not prejudiced (see Matter of Bailey v Board of Assessors,
Index No. 3846/07 [Sup Ct Nassau County 2007]; Matter of Bichoupan v Board
of Assessors, Index No. 002961/07 [Sup Ct Nassau County 2007]).

5
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

6
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

LIMITATIONS ON THE REQUESTED REDUCTION IN ASSESSMENT

Pursuant to RPTL § 730(1)(c) and (d), the requested reduction in assessment is
limited by two factors:

(1) Factor One: The reduction requested at the SCAR Hearing cannot be more
than the reduction that the property owner requested in the grievance filed with
the Board of Assessment Review (the “Board”). If the Board granted some but
not all of the reduction, the petitioner may seek the balance in the SCAR
proceeding.
For example, if the petitioner sought a reduction of $3,000 before
the Board and did not receive it, then he or she can ask for the
same $3,000 in the SCAR proceeding. If the Board granted a
reduction of $1,500, then the most the petitioner can ask for in the
SCAR proceeding is a reduction of the remaining $1,500.

(2) Factor Two: The requested reduction is also limited by the Equalized Value:
In SCAR proceedings outside Nassau County and NYC,4 the Equalized Value is
computed by dividing the final assessed value by the equalization rate.5 The
result is the equalized value.

ex. Final Assessed Value ÷ Equalization Rate = Equalized Value

ex.
$10,000 10,000
_______ or ______ = $100,000
10% .10

(a) If the Equalized Value is $450,000 or less, the amount of reduction
sought in the SCAR proceeding is only limited by the amount of the
reduction that was sought before the Board.

(b) If the Equalized Value is $450,001 or more, then the requested
reduction is limited to not more than 25% of the final assessment or
the reduction requested before the Board, whichever is less.

4
For a discussion of the limitations to the reduction of an assessment in special assessing
units (i.e., Nassau County and NYC) please refer to the Nassau County Supplement accessible
on the Internet at www.nycourts.gov/litigants/scar/index.shtml.
5
The statute provides that “[i]n the event there has been a material change in level of
assessment in the special equalization rate shall be used to determine the equalized value of the
property” (RPTL § 730[d]).

7
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

THE PETITION AND PRE-HEARING PROCEDURE

1. THE PETITION IS BOTH A LEGAL FILING AND A WORKSHEET. It
must be signed and filed in a timely manner. As noted above, the petition may be
completed by the property owner, or a person with knowledge of the facts who
has been authorized in writing to represent the property owner. Incomplete or
inconsistent forms are not grounds for dismissal. The petition may be amended at
the hearing since the statute provides that there are no pleading requirements in
SCAR proceedings (RPTL § 732[2]). Although it is preferable to have a petition
amended at the hearing, even if the petition is not formally amended, in rendering
a decision in a small claims action, a Hearing Officer may, sua sponte, conform
the pleadings to the proof received in the hearing (Wai-Sun Chen v Unique Food
& Vending Servs., Inc., 2002 NY Slip Op 40408(U), 2002 WL 31055592 [App
Term, 2d and 11th Jud Dists 2002]; Walker v Mergler, 2001 NY Slip Op
40613(U), 2001 WL 1744161 [App Term, 1st Dept 2001]; Greco v The Journal
News, 4 Misc 3d 1005(A), 2004 NY Slip Op 50704(U) [NY City Ct 2004]).

2. The County Clerk retains one (1) copy of the SCAR petition and forwards two
copies to the Supreme Court Small Claims Assessment Review Clerk. A Hearing
Officer should never assume that a petition is valid simply because it was
accepted for filing by the County Clerk.

3. In most jurisdictions, the Supreme Court Small Claims Assessment Review Clerk
retains one (1) copy of the SCAR petition and forwards one (1) copy of the
petition along with three (3) copies of the SCAR Decision Form, a voucher, a
Notice of Hearing Form, a Notice of Appointment to Serve to the Hearing
Officer.

4. The Hearing Officer reviews the cases for any conflict of interest, such as family,
business or social relationships with a party or the party’s representative (i.e.,
close friends as opposed to casual acquaintances). In the event of a conflict, the
Hearing Officer should contact the Supreme Court Small Claims Assessment
Review Clerk and the case will be reassigned.

5. The Hearing Officer should schedule and hear the case within forty-five (45) days
after the filing of the SCAR petition, or as soon thereafter as is practicable
(Uniform Rules for Trial Cts [22 NYCRR]§ 202.58[e][4]). The Hearing Officer
must advise the parties by mail of the time and location of the hearing at least 10
working days prior to the date of the hearing (Uniform Rules for Trial Cts [22
NYCRR] § 202.58[e][4]), but failure to receive such notice within the time period
does not bar the holding of the hearing (RPTL § 732[1]).6 The hearing must be

6
Although a party’s failure to receive the notice does not bar a Hearing Officer from
proceeding with the hearing, if the Hearing Officer learns that the reason for the party’s default

8
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

held at a location within the county where the real property is located (Uniform
Rules for Trial Cts [22 NYCRR]§ 202.58[e][4]). If an evening hearing is
requested, it must be granted unless special circumstances exist that require
otherwise (Uniform Rules for Trial Cts [22 NYCRR] § 202.58[e][4]).

6. There is no right to obtain pre-hearing discovery in a SCAR proceeding (9 Op.
Counsel SBEA No. 47).

was that the notice was mailed to an address different from the address set forth in the petition, it
would be an abuse of discretion to deny an adjournment request since it is always preferable to
have a decision based on the merits with each party having had a full and fair opportunity to be
heard (see Matter of Town of Plattekill v Larsen, Index No. 83-306 [Sup Ct Ulster County 1982],
affd as mod 99 AD2d 897 [1984]; see also Notrica v North Hills Holding Co., LLC, 43 AD3d
1119 [2007]; Kim v A&J Produce Corp., 15 AD3d 251 [2005]).

9
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

THE HEARING

1. The assessment is always presumed to be correct unless proven otherwise.
The burden of proof is on the petitioner to prove that the assessment is either
excessive and/or unequal by substantial evidence (Matter of Lake Sagamore
Community Assn., Inc. v Town of Kent, 160 AD2d 701, 701 [1990]). Substantial
evidence means enough to convince a reasonable person (Matter of FMC Corp. v
Unmack, 92 NY2d 179, 187-188 [1998]). “The substantial evidence standard is a
minimal standard. It requires less than ‘clear and convincing evidence’... and less
than proof by ‘a preponderance of the evidence, overwhelming evidence or
evidence beyond a reasonable doubt’” (id. at 188). “[O]nce petitioner has met its
initial burden and rebutted the presumption of validity that attaches to the
assessment, a court must 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” (id.).

In meeting this burden, petitioner is not required to present expert witnesses or
submit expert reports (i.e., there is no need to provide professional appraisal
reports [8 Op. Counsel SBEA No. 83]) (RPTL § 732[2]). A Hearing Officer is
permitted “to consider a wide variety of sources and information in evaluating tax
assessments” (Matter of McNamara v Board of Assessors of Town of Smithtown,
272 AD2d 617, 617 [2000]). In determining the proper rate, RPTL § 732(2)
provides that the “evidence may include, but shall not be limited to, the most
recent equalization rate established for such assessing unit, the residential
assessment ratio promulgated by the state board ..., the uniform percentage of
value stated on the latest tax bill, and the assessment of comparable residential
properties within the same assessing unit.” The Hearing Officer may even inspect
the property subject to review (RPTL § 732[2]).

2. Appearances at the hearing - RPTL § 732(3) provides that “[a]ll parties are
required to appear at the hearing.” However, the statute further provides that the
“failure to appear shall result in the petition being determined upon an inquest by
the hearing officer based upon the available evidence submitted” (RPTL § 732
[3]). Accordingly, simply because a party fails to appear at the hearing does not
mean that a decision contrary to that party’s interest should be granted.7 Instead,
the Hearing Officer should proceed to an inquest with the party who has appeared
(or take the petition on submission if neither party appears) and render a decision
based upon the available evidence submitted.

3. Settlements - Parties may stipulate to a settlement before or during the hearing.
Do not take a settlement over the telephone. It must be in writing and signed by

7
However, because there is the presumption of validity that attaches to an assessment,
petitioner must overcome this presumption by showing that the assessment was excessive and/or
unequal by substantial evidence.

10
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

both parties.

4. The signed decision form constitutes a judicial order and must be prepared even if
there is a settlement (9 Op. Counsel SBEA No. 56). The signed settlement should
be attached to the decision form. A settlement without a signed decision from the
Hearing Officer is without force and effect.

5. The Conduct of the Hearing

• At all times the Hearing Officer must remain impartial and ensure that the
proceedings are conducted in “such manner as to do substantial justice
between the parties according to the rules of substantive law” (RPTL §
732[2]). It is the Hearing Officer’s obligation to assure that decorum is
maintained at the hearing (RPTL § 732[2]).

• The Hearing Officer should open by introducing himself/herself and ask
the parties to do the same.

C The hearing is an informal proceeding (e.g., no need to swear in the
witnesses unless it is the Hearing Officer’s practice to do so) and the rules
of evidence do not apply (RPTL § 732[2]).

C Both sides should be provided ample opportunity to present their case,
with petitioner being given the opportunity to present first.
.
• The cross-examination of witnesses is permitted. To maintain decorum
and ensure that substantial justice is achieved, a Hearing Officer may limit
the cross-examination of any witness to prevent abuse and ensure that
only relevant evidence is being obtained (see RPTL § 732[2]).

• If the property owner is being represented by a designated representative,
that representative does not have to be an attorney (Matter of Cipollone v
City of White Plains, 181 AD2d 887 [1992]; 9 Op. Counsel SBEA No.
63). Non-attorney representatives may argue both legal and factual issues
(Matter of Board of Assessors v Hammer, 181 AD2d 885 [1992]).

C A Hearing Officer may ask questions to ascertain relevant facts and/or to
clear up any inconsistencies.

C Adjournments and continuances are discouraged (Uniform Rules for Trial
Cts [22 NYCRR] § 202.58[e][5]). Nevertheless, a Hearing Officer has the
discretion to grant an adjournment or continuance of the hearing for good
cause shown (e.g., a jurisdictional objection is raised for the first time at
the hearing and petitioner needs an opportunity to obtain evidence to rebut
respondent’s objection) (id.).

11
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

C A Hearing Officer may take notes, but no recording devices of any kind
are allowed by anyone, nor are court reporters allowed to transcribe the
proceeding (RPTL § 735).

C Hearing Officers may not engage in ex parte communications with either
party other than to schedule a hearing.

C Once a hearing is over, a Hearing Officer should not accept any further
evidence, argument or other submission from either party unless the
Hearing Officer has determined there is a need for such post-hearing
submissions and established a schedule for them. The post-hearing
schedule should set dates for each party’s post-hearing submission, as well
as an opportunity for each party to rebut their adversary’s post-hearing
submission.

C At the conclusion of the hearing, the participants should be requested to
leave the room. Hearing Officers should avoid fraternizing with the
participants and should not accept any ex parte communications from the
parties after the hearing’s conclusion.

12
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

THE DECISION

1. Hearing Officers should not render decisions from the bench since all decisions
must be in writing (RPTL § 733[1]). The only exception would be to verify a
settlement.

2. The decision must be rendered within 30 days after the conclusion of the SCAR
hearing (RPTL § 733[1]).

3. Hearing Officers should listen to all the evidence and should keep circumstances
from different cases separate even if they involve similar properties. Prior SCAR
decisions involving the same or similar properties have no precedential value
(RPTL § 735).

4. The Decision may order one of four things: (RPTL § 733[1])
(1) Grant the petition in full;
(2) Grant the petition in part;
(3) Deny the petition; or
(4) Dismiss the petition on jurisdictional grounds.

5. If the Hearing Officer decides to grant the petition in whole or in part, the
maximum amount of a reduction that may be granted is the lesser of (1) the
amount requested in the grievance/SCAR petition, or (2) 25% of the final
assessment for properties with equalized values greater than $450,000 (RPTL §
730[1][c] and [d]).

6. RPTL § 733(4) requires the decision to state the findings of fact and the evidence
upon which it is based.8 The factual findings are necessary so that in the event of
an Article 78 appeal, the reviewing court may determine whether the decision had
a rational basis (Matter of McNamara v Board of Assessors of Town of
Smithtown, 272 AD2d 617 [2000]). Without such factual findings, it is likely that
the decision will be annulled and remanded for a de novo determination before a
new Hearing Officer. The factual findings should be made based upon the proof
submitted in the SCAR proceeding and should not be the product of the Hearing
Officer’s subjective judgment (Matter of Carvalho v Board of Assessors, NYLJ,
Dec. 15, 2005, at 21, col. 1]). The back of the decision form should be used for
this purpose. Examples of decisions that satisfy and do not satisfy this
requirement are included in the handbook accompanying this manual.

Completing the Decision

8
This is true even for decisions involving properties that are disqualified on jurisdictional
grounds.

13
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

C A Hearing Officer must order a correction of the assessment if he/she decides that
the assessment is unequal (i.e., that there is an inequality of assessment) and/or
excessive.

The formula to determine the proper assessed valuation of property where
fractional assessments are allowed (i.e., Nassau County) is not complex:

Assessed Valuation = Market Value × Proper Rate

conversely

Market Value = Assessed Value ÷ Proper Rate

A SCAR applicant may assert that an assessment is “excessive” and/or
“unequal.”

By definition, in a jurisdiction where properties are assessed at full value, an
excessive assessment is one where the assessment exceeds full value or one not
including a lawful exemption. This is applicable directly to all jurisdictions,
except where fractional assessments are allowed (e.g., Nassau County).

An “unequal” assessment is an assessment based on a higher proportion of full
value than the assessed valuation of other residential property or of all real
property on the same roll. In this regard, petitioner must prove that his or her
“property is overassessed as compared to ‘all other property on the assessment
roll or ... the average of residential property on the assessment roll’” (Matter of
Sofia v Assessor of Town of Eastchester, 294 AD2d 509, 510 [2002]). Petitioner
may prove inequality by evidence of “the assessment of comparable residential
properties within the same assessing unit” (RPTL § 732[2]).

In order to comply with the requirements of statute, the petitioner must prove:

1. The Market Value9 - In the event there is no recent sale of the subject property,

9
The Appellate Division, Second Department has stated that “[f]ull market value may be
established by such methods as proof of a recent purchase price for the property, a professional
appraisal, or proof of the sales prices or appraised values of comparable properties” (Matter of
Pace v Assessor of Town of Islip, 252 AD2d 88 [1998], lv denied 93 NY2d 805 [1999]).
Nevertheless, “[i]t is well settled that ‘the purchase price set in the course of an arm’s length
transaction of recent vintage, if not explained away as abnormal in any fashion, is evidence of
the “highest rank” to determine the true value of the property at that time” (Matter of Lovett v
Assessor of Town of Islip, 298 AD2d 521, 521 [2002]; see also Matter of FMC Corp. (Peroxygen
Chem. Div.) v Unmack, 92 NY2d 179, 189 [1998] [best evidence of value is a recent sale
between a seller under no compulsion to sell and a buyer under no compulsion to buy]; Matter of
Montgomery v Board of Assessment Review of Town of Union, 30 AD3d 747 [2006]).

14
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

this is usually based on review of comparable sales or a formal appraisal. The
New York Court of Appeals has held that “[a] comparable sale need not be
identical to the subject property .... [and instead] need only be ‘sufficiently similar
....’” (Matter of FMC Corp., 92 NY2d at 189). If the comparables are not
sufficiently similar, they must be adjusted to account for the nature and condition
of the subject property (Matter of General Motors Corp. Cent. Foundry Div. v
Assessor of Town of Massena, 146 AD2d 851, 852 [1989], lv denied 74 NY2d
604 [1989]). Because the property must be valued according to its condition on
the taxable status date, it may not be valued on the basis of possibilities or some
use contemplated in the future (id.; see also Matter of Adirondack Mountain
Reserve v Board of Assessors of Town of North Hudson, 99 AD2d 600, 601
[1984], affd 64 NY2d 727 [1984]; Matter of General Electric Co. v Macejka, 117
AD2d 896, 897 [1986]). Furthermore, an appraiser may not average his
comparable sales to arrive at a value since such averaging disregards the unique
elements of comparability among sales (Latham Holding Co. v State, 16 NY2d 41
[1965]).

2. The Proper Rate - in making the determination regarding proper rate, the
Hearing Officer may consider the best evidence presented, which evidence may
include, but is not limited to, the equalization rate, the residential assessment ratio
(if one is set by the Office Real Property Services), the uniform percentage of
value stated on the last tax bill (i.e., the Level of Assessment on the tax bill) and
the assessment of comparable residential properties within the same assessing unit
(RPTL § 732[2]; see also Matter of Pace v Assessor of Town of Islip, 252 AD2d
88 [1998], lv denied 93 NY2d 805 [1999]). “Through this proof the homeowner
must show that the assessed valuation of his or her property is at a higher
percentage of its full market value than the percentage that the proof establishes
to be the appropriate one for the assessing unit” (Matter of Pace, 252 AD2d at 90-
91).

The assessed valuation is found by applying those values to the formula.

An actual assessment may be sustained after the hearing, or the assessment may
be found excessive or unequal or both.

It is important to note that for those jurisdictions that utilize fractional
assessments (e.g., Nassau County), the concepts of excessive and unequal are
intertwined.

C If the property is disqualified for SCAR treatment for any of the reasons set forth
in the Decision Form’s provisions 1(a) through 1(f) [e.g., jurisdictional eligibility
requirements], then the petitioner has the right to pursue a tax certiorari
proceeding within 30 days of the receipt of the signed decision (RPTL § 733[3]).
Petitioner may also appeal the decision by filing an Article 78 proceeding (RPTL
§ 736[2]).

15
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

C If a Hearing Officer grants a reduction equaling 50% or more of the requested
reduction, an award of costs in the amount of $30 must be granted unless the
parties waive them in a settlement (9 Op. Counsel SBEA No. 56). If a Hearing
Officer grants a reduction that is less that 50% of the requested reduction, an
award of costs up to, but not to exceed, $30, is within the Hearing Officer’s
discretion. The award of costs is not a refund of the filing fee. It is paid by the
Assessing Unit, not by the County Clerk.

C The decision must be filed with the Clerk of the Court. The decision will then be
filed and entered. Once the decision is filed, it is final and may not be modified
by the Hearing Officer except to correct a clerical error.

C The Hearing Officer must transmit copies of the completed and signed decision
to:

(1) Petitioner or Designated Representative;

(2) The Clerk of the Assessing Unit;

(3) Clerk of each Tax District named in the petition; and

(4) Supreme Court SCAR Clerk

A Hearing Officer acts as both the trier of fact and law and must ensure that the SCAR
proceeding does “substantial justice between the parties according to the rules of substantive
law” (RPTL § 732[2]).

16
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

Effect of a Grant of Reduction in Assessment - The One Year Freeze Provision

If the Hearing Officer grants a reduction in assessment, the assessment cannot be
increased on the next assessment roll unless
(1) the owner of the property becomes eligible or ineligible to receive an exemption, or
(2) the property has been subject to:
(a) a revaluation or update of all real property, or of all real property within the same
class in a special assessing unit, on an assessment roll;
(b) an improvement;
(c) a zoning change;
(d) alteration by fire, demolition, destruction or similar catastrophe;
(e) a change in the use or classification of the property; or
(f) a government action affecting the value of the property (RPTL § 739[1] and [2]).

Furthermore, the property owner may not file a petition for the review of the assessment
while the freeze provisions of RPTL § 739 (1) and (2) are applicable to the property
(RPTL § 739[3]).

17
FILED: ORANGE COUNTY CLERK 11/07/2021 07:44 PM INDEX NO. EF500367-2021
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 11/07/2021

Ethical Considerations

A Hearing Officer is bound by the code of ethics set forth in section 74 of the Public
Officer’s Law. In addition, Hearing Officers must comply with the Rules of the Chief
Administrator, Part 100,

Case Info

Judge

John R Lindstrom Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

November 07, 2021

Case Filing Date

July 27, 2021

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Document for Jose Garcia v. Newburgh Town Of

Preview

Related Topics

Case Info

Parties