Plaintiff, County of Nassau, seeks summary judgment on a complaint against the defendant property owners, claiming that they owe a $500.00 civil penalty. The complaint proceeds on the premise that defendants were fined $500.00 by the Board of Assessors for failing to timely file an “Annual Survey of Income and Expense, pursuant to Nassau County Administrative Code Section 6-30.” Defendants’ answer denies liability, and avers that County officials acted illegally and unconstitutionally in imposing such a penalty.
Upon the papers submitted in support of plaintiff’s motion, the Court finds that plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law. While the Court presumes, for purposes of this decision, that NCAC section 6-30 is constitutional, plaintiff has failed to plead and prove basic elements of its claim. These failures include lack of proof that defendants were owners of “income producing property” as defined in section 6-30(a), lack of proof that the Board of Assessors duly requested an income and expense statement from them, and lack of proof that the Board of Assessors imposed such a penalty upon them, specifically. In the absence of such proof, the Court must deny plaintiff’s motion for summary judgment.
Furthermore, the opposing papers submitted by defendants, when read together with plaintiff’s moving papers, establish plaintiff’s inability to prove that defendants were given notice of the Board of Assessors’ request a defense that plaintiff failed to rebut or controvert in its reply. In accordance with the Court’s power to search the record on a summary judgment motion and to grant judgment to a non-moving party (see CPLR 3212[b]), the Court finds, upon the papers submitted, that defendants are entitled to dismissal of the complaint, on the merits.
The Court’s analysis starts with the wording of NCAC section 6-30. The provisions of that section were enacted in 1984 (Local Law No. 5-1984) and are titled “Requirement to furnish income and expense statements.” Pursuant to subdivision (b) of section 6-30, the owner of “income producing property” may be required to file “an income and expense statement for the most recent taxable year.” However, the section’s wording expressly limits the obligation to owners of real property falling within the law’s definition, namely, “real property used for commercial, industrial, utility and residential purposes” exclusive of “residential property containing three dwelling units or less.” NCAC Section 6-30(a)(1). Moreover, subdivision (b) expressly conditions the obligation to furnish the statement to circumstances where the statement is “requested by the Board of Assessors.”
The language of NCAC section 6-30, on its face, does not specify how a request from the Board of Assessors must be made, nor does it prescribe the form of such a request. The deadline for complying with a request from the Board of Assessors appears to depend on whether the owner’s financial records are kept on a fiscal year or calendar year basis (see NCAC section 6-30[b]), but no specific period of advance notice must be given to the owner. Instead, the section merely provides, in general terms, that the owner may apply for a waiver or an extension of time to comply. NCAC section 6-30(c). No guidance is provided as to the procedures, standards, and guidelines for requesting and obtaining such a waiver or extension.
Finally, the last subparagraph of the section includes the following penalty provision: “The violation of any provision of this section or of any rule or regulation promulgated hereunder, shall render the violator liable for the payment to the County of a civil penalty, recoverable in a civil action, in a sum of not more than five hundred dollars for each such violation, said sum to be determined by the Board of Assessors.” NCAC section 6-30(e).
Notably, the complaint contains no allegation that defendants’ property is an “income producing property” as defined in section 6-30 (a)(1). More importantly, it contains no allegation that the Board of Assessors duly requested defendants to file such an Annual Survey of Income and Expenses. See NCAC section 6-30(b). Nor does it allege that defendants were notified, by mail or otherwise, of their obligation, or of the applicable deadline, or of their right to seek an extension of time to comply, or how they could object or contest any such request.
Following receipt of defendants’ pro-se responsive pleading setting forth a mixture of denials and defenses, plaintiff chose to move for summary judgment upon an equally sketchy moving affidavit. The moving affidavit is given by an employee of the County Department of Assessment, and it asserts, in conclusory terms, that the Board of Assessors was empowered by NCAC section 6-30 to impose a $500.00 penalty, recoverable in a civil action from defendants, for violations of that section. The affidavit further asserts that “notices for the 2007 year” were sent to “property owners” on February 21, 2008, but “no hard copies were retained of any of the notices sent.” The exact text of the “notice” is not set forth. Nor does the affidavit claim specifically that defendants were among the addressees of the notices.
The affidavit further recites, in very general terms, that the Board of Assessors had issued a resolution (res. no.3-2008) on June 12, 2008, imposing a $500.00 fine “on any income-producing real property owner who failed to file an income and expense statement prior to May 1, 2008.” However, the actual resolution is not submitted with plaintiff’s papers. Nor does the moving affidavit include an allegation that the resolution specifically imposed such a penalty upon defendants.
Opposition papers submitted by the pro-se defendants fill in some, but not all, of the gaps respecting the subject events. Affidavits from defendants establish that they “first received notice” that plaintiff was seeking a civil penalty against them in November 2008, when a debt collection company sent them a letter advising that “the above account has been placed in our office for collection.” The debt collection letter, itself, does not reference NCAC section 6-30, or otherwise describe the basis or nature of the alleged debt.
According to defendant Ronald Ransom, when he telephoned the debt collector’s office on November 10, 2008, he was told that the matter involved “a penalty” that had been assessed because of his “failure to file an income and expense survey form with the Nassau County Assessment Department.” Defendant wrote in response that he disputed “owing money and that I never received any forms to be completed by the County of Nassau, Department of Assessment.”
Three months later, on February 20, 2009, a law firm retained by the Board of Assessors “to collect the Civil Penalty” wrote a letter to defendants claiming that the penalty “has been levied against you for your failure to file the Annual Survey of Income and Expenses.” The letter claimed that defendants “were required to file the Annual Survey no later than May 1, 2008” pursuant to NCAC section 6-30. “Based upon your failure to file the survey, the Nassau County Board of Assessors, has imposed a civil penalty upon you in the sum of $500.00.” The letter warned defendants that if they failed to pay, “we have been authorized by our client, the Nassau County Board of Assessors, to file suit against you. Upon the filing of suit your indebtedness will be increased by the addition of Court costs, interest and disbursements.”
Again, defendant Ronald Ransom wrote a letter in response, advising the law firm the he “disputed owing money and that I never received any forms or notification from the Nassau County Board of Assessors concerning a Civil Penalty and I am unaware of section 6-30(e) of the Nassau County Administrative Code.”
Against this background, the threshold legal issue is whether plaintiff met its burden of making of a prima facie showing of entitlement to judgment as a matter of law. Defendants contend that they have valid defenses and that triable issues of fact exist. Plaintiff’s counsel, in reply, contends that defendant are “grasping at straws to attempt to create issues of fact that do not exist” and that plaintiff’s moving papers “set forth a prima facie case for summary judgment.”
Contrary to plaintiff’s contention, the opposition papers, read in a light most favorable to defendants, raise at least one triable issue whether their property falls within the definition of “income producing property” set forth in NCAC section 6-30(a)(1). However, even if plaintiff is correct in its claim on this point, it does not alter plaintiff’s obligation, on this motion, to first make a showing of entitlement to judgment, as a matter of law, by tendering evidentiary proof in admissible form. The movant’s failure to make such a showing mandates the denial of its summary judgment motion regardless of the sufficiency of opposing papers.
Plaintiff’s proof is deficient in several critical respects. Did plaintiff plead and prove that defendants own “income producing property” as defined in NCAC section 6-30(a)(1)? Its moving papers never address the issue. Moreover, defendants aver in their opposition that the property “was previously used as a one-family dwelling” and that it is not necessarily “income producing property.” At a minimum, one would expect that plaintiff would come forward with some proof as to the property’s current use. It did not do so.
Second, and more importantly, plaintiff failed to plead and prove that defendants were “requested by the Board of Assessors” to file an income and expense statement. Section 6-30(b) expressly conditions an owner’s obligation to make a required filing upon such a request. It is an essential element of the law. Without a request, the defendants have no obligation to submit an income and expense statement. Here, again, the pleading and proof offered by plaintiff are deficient.
The complaint never alleges the mailing of a request to these defendants. At most, it appears from a generic moving affidavit of an employee in the Department of Assessment that some form of “notice” was sent to “property owners.” But, by plaintiff’s own admission, it failed to retain hard copies of the notices it had allegedly sent. What kind of response did the notices ask for? Plaintiff’s moving papers do not say. Who were notices addressed to? Again, we do not know. Does plaintiff claim that defendants were provided with such a notice? Again, the issue is not addressed in plaintiff’s complaint or its moving papers. And in the face of defendants’ sworn averrals denying receipt of any notice, plaintiff’s failure to address the issue speaks volumes about the inadequacy of its proof.
Last but not least, plaintiff inexplicably failed to submit, as part of its proof, a copy of the resolution that it asserts was passed by the Board of Assessors, assessing a civil penalty of $500.00 upon defendants due to their alleged failure to file the Annual Survey of Income and Expenses. The subject claim necessarily depends upon proof that the Board of Assessors actually imposed such a civil penalty upon these particular defendants. See NCAC section 6-30(e). In this Court’s opinion, a generic statement in the employee’s moving affidavit, stating that the Board of Assessors imposed a $500.00 fine “on any income-producing property owner who failed to file an income and expense statement prior to May 1, 2008”, fails to constitute the required prima facie proof of the lawful imposition of a $500.00 fine against the named defendants in this action.
These defects, individually and collectively, are fatal to plaintiff’s motion for summary judgment. However, they do not end the Court’s analysis. In accordance with the Court’s long recognized power to “search the record” on a summary judgment motion (see CPLR 3212[b]), the Court finds that defendants should be granted summary judgment upon the evidence presented.
As noted above, plaintiff has failed to plead or prove that the Board of Assessors made a request of defendants that they file an income and expense statement. Indeed, plaintiff admits that it kept no hard copies of the notices sent to unidentified property owners. In the face of defendants’ sworn assertions that they never received any forms or notification from the Board of Assessors prior to being dunned by a debt collector months after the alleged penalty was imposed, it was incumbent upon plaintiff to submit proper opposing proof in order to proceed with its action. It did not do so. Consequently, the Court finds, pursuant to its power to search the record on a summary judgment motion, that dismissal of the complaint is warranted.
Dismissal on this ground eliminates the need to address the other defenses raised by defendants’ opposing papers. Although defendants have asserted several other procedural and substantive challenges to the County’s practices and procedures, including a broad legal attack upon plaintiff’s ability to penalize them without first affording them notice and an opportunity to be heard, the Court declines to decides these issues in view of its determination to dismiss the complaint upon the ground set forth above. Furthermore, inasmuch as defendants have not asserted third party claims against the County’s debt collector and its outside attorney for demanding payment in advance of the commencement of this case, the Court leaves for another day whether debt collection letters, such as those sent to defendants, are legally permitted in advance of a judicial determination, in a civil action, that the claimed penalty is properly “recoverable” in accordance with the requirements of NCAC section 6-30. Cf. Opinions of North Dakota Attorney General, Letter Opinion 2000-L-179.
In closing, this dismissal should serve as a cautionary note to plaintiff. Similar proceedings to enforce a civil penalty imposed under NCAC section 6-30 should not be commenced or brought except upon adequate proof of compliance with the notice and request requirements of the law. Proceeding without such proof could very well warrant the imposition of sanctions under Rule 130. While the Court is giving plaintiff the benefit of the doubt in adjudicating what appears to be a case of first impression, the proof, here, compels an order of dismissal.
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