CourtListener 9988793•Sciorilli Family Limited Partnership V.Township of Lakewood
Sciorilli Family Limited Partnership V.Township of Lakewood
CourtListener 9988793NjtaxctNov 30, 2017
Full text
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
Patrick DeAlmeida R.J. Hughes Justice Complex
Presiding Judge P.O. Box 975
Trenton, New Jersey 08625-0975
(609) 815-2922 x54620
November 29, 2017
William J. Sitar, Esq.
Sitar Law Offices, LLC
1481 Oak Tree Road
Iselin, New Jersey
Dante M. Alfieri, Esq.
Cleary, Giacobbe, Alfieri, Jacobs, LLC
5 Ravine Drive
P.O. Box 533
Matawan, New Jersey 07747
Re: Sciorilli Family Limited Partnership v.
Township of Lakewood
Docket No. 006884-2017
Dear Counsel:
This is the court’s opinion with respect to defendant’s motion to dismiss the Complaint
because of plaintiff’s failure to respond to the tax assessor’s request for income and expense
information relating to the subject property pursuant to N.J.S.A. 54:4-34, commonly known as
Chapter 91 (L. 1979, c. 91). For the reasons explained more fully below, the motion is granted
and the Complaint is dismissed pursuant to the doctrine of collateral estoppel.
I. Findings of Fact and Procedural History
This letter opinion sets forth the court’s findings of fact and conclusions of law based on
the submissions of the parties on defendant’s motion.
Plaintiff Sciorilli Family Limited Partnership is the owner of real property in defendant
Lakewood Township. The property is designated in the records of the municipality as Block 1605,
Lot 10, and is commonly known as 160 Lehigh Avenue.
On March 18, 2017, plaintiff filed a Complaint challenging the tax year 2017 local property
tax assessment on the property. The March 18, 2017 Complaint, which was filed by an attorney
other than the attorney who appears on behalf of plaintiff in this matter, was assigned Tax Court
Docket No. 003102-2017.
On April 6, 2017, the municipality filed a motion to dismiss the March 18, 2017 Complaint
pursuant to N.J.S.A. 54:4-34 based on plaintiff’s failure to respond to the municipal tax assessor’s
request for income and expense information. It is well established that a taxpayer who fails to
respond to a tax assessor’s Chapter 91 information request is entitled to a reasonableness hearing
before a Complaint may be dismissed. See Ocean Pines, Ltd. v. Borough of Point Pleasant, 112
N.J. 1, 11 (1988).
On April 25, 2017, plaintiff’s counsel in the matter bearing Tax Court Docket No. 003102-
2017 filed a letter stating, in relevant part:
Please be advised that plaintiff will not oppose Township’s Chapter
91 motion regarding the above-captioned matter, which is returnable
April 28, 2017 before your Honor. Additionally, plaintiff waives its
right to a reasonableness hearing pursuant to Ocean Pines, Ltd. v.
Borough of Point Pleasant, 112 N.J. 1 (1988).
On April 28, 2017, the court entered an Order dismissing the Complaint in the matter
bearing Tax Court Docket No. 003102-2017. The Order states that dismissal was warranted
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because the court had “reviewed the moving papers and determined that the municipal tax assessor
complied with N.J.S.A. 54:4-34 in all respects and that plaintiff had failed to respond to the
assessor’s request for income and expense information . . . .” The April 28, 2017 Order was, in
effect, a final Judgment concluding the matter bearing Tax Court Docket No. 003102-2017.
On April 3, 2017, prior to the return date of the municipality’s motion to dismiss the
Complaint in the matter bearing Tax Court Docket No. 003102-2017, plaintiff filed the Complaint
in the present matter. The April 3, 2017 Complaint, assigned Tax Court Docket No. 006884-2017,
names the same plaintiff and defendant, and challenges the same tax year 2017 assessment on the
same parcel as the prior matter. The only material difference between the two Complaints is the
attorney representing the taxpayer. The record contains no information explaining why the
taxpayer retained two attorneys to file two Complaints challenging the tax year 2017 assessment
on its property.
On July 12, 2017, the municipality moved to dismiss the April 3, 2017 Complaint based
on plaintiff’s failure to respond to the tax assessor’s request for income and expense information
pursuant to Chapter 91. The municipality’s moving papers are substantively identical to those
filed in the previous action. In addition, in support of its motion, the municipality reminded the
court that it had on April 28, 2017 dismissed the Complaint filed on plaintiff’s behalf in the matter
bearing Tax Court Docket No. 003102-2017. Defendant’s counsel certified that in light of the
dismissal of the earlier matter he had requested that plaintiff’s counsel withdraw the April 3, 2017
Complaint. He certified that his requests had been refused and urged the court not to permit the
taxpayer to have a “second bite at the apple.”
On August 22, 2017, plaintiff opposed defendant’s motion dismiss the Complaint. The
taxpayer does not deny having received the tax assessor’s information request nor claim to have
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responded to the request. Instead, the taxpayer called the court’s attention to various discrepancies
in the tax assessor’s certification in support of the municipality’s motion. The taxpayer noted that
dates in the certification contradict dates on relevant documents attached to the certification.
Plaintiff’s opposition did not mention the dismissal of the earlier-filed Complaint or the
municipality’s argument with respect to plaintiff’s attempt to have a “second bite at the apple.”
On September 8, 2017, the municipality filed a reply brief with supporting certifications
addressing the discrepancies in the evidence raised by plaintiff. Defendant’s reply brief does not
address the issue of the previously dismissed Complaint.
On November 28, 2017, the court heard the oral arguments of counsel.
II. Conclusions of Law
There is no doubt in the court’s mind that plaintiff is collaterally estopped from opposing
the municipality’s motion. The Supreme Court’s precedents are clear. In Winters v. North Hudson
Regional Fire and Rescue, 212 N.J. 67, 85 (2012), the Court explained that “collateral estoppel,
also known as issue preclusion . . . is an equitable principle that arises
[w]hen an issue of fact or law is actually litigated and determined by
a valid and final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action
between the parties, whether on the same or a different claim.
[(quoting Restatement (Second) of Judgment §27 (1982)(internal
quotations omitted).]
To preclude a claim
the party asserting the bar must show that: (1) the issue to be
precluded is identical to the issue decided in the prior proceeding;
(2) the issue was actually litigated in the prior proceeding; (3) the
court in the prior proceeding issued a final judgment on the merits;
(4) the determination of the issue was essential to the prior
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judgment; and (5) the party against whom the doctrine is asserted
was a party to or in privity with a party to the earlier proceeding.
[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)(citing In
re Estate of Dawson, 136 N.J. 1, 20-21 (1994)(quotations omitted).]
“Fundamental to the application of estoppel is an assessment of considerations such as
‘finality and repose; prevention of needless litigation; avoidance of duplication; reduction of
unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty;
and basic fairness.” Winters, supra, 212 N.J. at 85 (quoting Olivieri, supra, 136 N.J. at 522); accord
Hennessey v. Township of Winslow, 183 N.J. 593, 599-600 (2005)). “The purpose of collateral
estoppel is both to protect litigants from the burden of relitigating an identical issue with the same
party and to promote judicial economy by preventing needless litigation.” In re: Liquidation of
Integrity Ins. Co., 214 N.J. 51, 68 (2013)(internal quotations and alternations omitted).
Each of the factors supporting application of collateral estoppel are present here. The issue
presented by defendant’s motion to dismiss the Complaint in the matter bearing Tax Court Docket
No. 003102-2017 is identical to the issue presented in support of defendant’s motion to dismiss
the Complaint in the present matter. In fact, defendant’s moving papers in the two matters are
substantively identical. The court actually decided the issue raised in defendant’s moving papers
in the prior proceeding. Although plaintiff did not oppose the motion to dismiss, the court
reviewed the moving papers and found that the municipal tax assessor had fully complied with
N.J.S.A. 54:4-34 and that the taxpayer had failed to respond to the assessor’s request for
information. The court’s determination of that issue was essential to its decision to dismiss the
Complaint, given that it was the only issue raised in the motion. In addition, the court’s Order
served as a final Judgment concluding all issues as to all parties. Finally, the parties to the prior
proceeding and the parties to the present matter are identical.
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The dissipation of resources on duplicative motions is counterproductive to the efficient
operation of the judicial system and the cost-effective resolution of legal claims. The court has
duplicated its efforts by reviewing substantively identical moving papers in substantively identical
actions by identical parties. The municipality has duplicated its efforts by twice moving for the
same relief in two substantively identical matters filed against it by the same party. Plaintiff was
notified of its duplicate actions by the municipality and of the resolution of the first action through
motion but persisted in burdening the court and municipality by opposing a motion identical to
one it had affirmatively elected not to oppose a few months earlier. In fact, plaintiff’s opposition
to the municipality’s motion was filed after plaintiff had waived its right to a reasonableness
hearing and allowed entry of an Order dismissing its Complaint in the previously filed action.1
In light of the fact that plaintiff is collaterally estopped from raising its claims in opposition
to defendant’s motion to dismiss the Complaint, and given plaintiff’s previous waiver of its right
to an Ocean Pines reasonableness hearing, the court will enter Judgment dismissing the Complaint
pursuant to N.J.S.A. 54:4-34.
Very truly yours,
/s/Hon. Patrick DeAlmeida, P.J.T.C.
1
Although the municipality might have relied solely on collateral estoppel in support of its
motion to dismiss the Complaint, and thereby conserved its resources, R. 8:7(e) requires that
motions for relief pursuant to N.J.S.A. 54:4-34 must be filed no later than the earlier of 180 days
after the filing of the Complaint or 30 days before the trial date. In light of this limitation, it was
reasonable for the municipality to include in its moving papers the evidence and arguments
supporting its claimed right to relief under N.J.S.A. 54:4-34.
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