NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
Mala Narayanan 153 Halsey Street
JUDGE Gibraltar Building, 8th Floor
Newark, New Jersey 07101
Telephone (973) 648-2921
TeleFax: (973) 648-2149
taxcourtnewark2@judiciary.state.nj.us
February 23, 2012
BY E-MAIL AND FIRST-CLASS MAIL
Scott and Amy Gurvey
Self-Represented
315 Highland Avenue
Upper Montclair, New Jersey 07043
Anthony Marchese, Esq.
Nowell Amoroso Klein Bierman, P.A.
155 Polifly Road
Hackensack, New Jersey 07601
Re: Gurvey et al. v. Township of Montclair
Docket No. 000339-2011
Dear Mrs. & Mr. Gurvey and Mr. Marchese:
This is the court’s opinion in connection with plaintiffs’ letters of December 14, 2011 and December 16, 2011, treated as motions, seeking the court’s disqualification/recusal, and re-consideration of this court’s final Order dated December 14, 2011. In those letters plaintiffs claimed a violation by the undersigned of the Americans with Disabilities Act (“ADA”) as the judge “made fun of [Mrs. Gurvey’s] disabilities” and threatened her with arrest by the sheriff’s
*
officers during an in-court case management conference, and violation of due process in presenting evidence at the plenary hearing, all of which evidenced the judge’s lack of impartiality and fairness to adjudicate her complaint. Plaintiffs also contended that their recusal/disqualification allegations formed the basis for this court to reconsider and reverse its December 13, 2011 ruling, and its subsequent Order dated December 14, 2011 in this regard which addressed the court’s subject-matter jurisdiction over the plaintiffs’ complaint.
The court finds that plaintiffs’ allegations of arrest threats, ADA violations, and violation of due process hearing rights are unfounded. Further, their motion for reconsideration is no more than a repetition of their arguments which were fully briefed and argued by the plaintiffs, and carefully considered by the court in rendering its decision. Plaintiffs have not provided any new evidence that was not in their possession prior to the court’s decision, nor have they provided any law that this court overlooked. Therefore, their motions are denied.
PROCEDURAL HISTORY
Plaintiffs, Scott and Amy Gurvey, are the owners of real property located in defendant township (“Montclair”). The property is designated as Block 705, Lot 1, with a street address of 315 Highland Avenue, Upper Montclair (“subject property” or “315 Highland Avenue”).
On or about February 15, 2011, plaintiffs filed an appeal with the Tax Court Management Office (“TCMO”) challenging Montclair’s assessment on the subject property. They included the required filing forms and a filing fee of $35. On the Case Information Sheet (“CIS”) (which also indicated that $35 was paid by “check #360”), plaintiffs listed their address as 315 Highland Avenue, and stated that they wanted a “refund of edifice portion plus permanent abatement to 2009 appraisal per hearing.” Plaintiffs also indicated that the tax years at issue were “2009, 2010, 2011” and that they were contesting the “10-27-09” action of the Essex County Board of Taxation (“County Board”). They attached a judgment of the County Board which indicated that for tax year 2009, the plaintiffs received a reduction in the assessment from $925,400 to $852,000. The County Board judgment was mailed to plaintiffs on December 11, 2009.
By notice dated February 23, 2011, the TCMO sent a “Case Management Plan” to plaintiff. The notice advised the parties that pursuant to plaintiffs’ complaint filed February 15, 2011, the matter was docketed as 000339-2011, and was assigned to the undersigned Tax Court judge. The notice listed the assessment year at issue as 2011, and provided the dates for discovery completion, and for trial in August of 2011. It also requested correction of “non conforming information” which was the absence of a “County Board Judgment” for tax year 2011 as the same was not included in plaintiffs’ complaint.
By letter dated February 28, 2011, the TCMO wrote to the plaintiffs at their 315 Highland Avenue address that it received plaintiffs’ local property tax appeal for tax year 2009, which had indicated plaintiffs sought special accommodation on account of disability. The office requested plaintiffs to provide certain information in this regard. No response was received. Accordingly, the TCMO issued another Case Management Notice advising the parties of the trial date of August 12, 2011. This notice, however, indicated a 2009 docket number, 018020-2009.
On the scheduled trial date, which was also the date of the court’s regularly scheduled trial call, the court requested Mrs. Gurvey and Montclair’s attorney to appear in the judge’s chambers so that the matter could be informally discussed and issues focused, especially since Mrs. Gurvey did not have a real estate valuation expert witness in connection with her tax court complaint.1 Present in chambers was also the judge’s law clerk. At the outset of the conversation, Montclair’s counsel requested that anything discussed be placed on the record (i.e., taped) due to Mrs. Gurvey’s continued hostility and accusations of professional impropriety. Since the court had not witnessed this behavior (this was Mrs. Gurvey’s first appearance before the court and the judge), the court did not grant the request, preferring to make its own judgment in this regard.2
At the initial stages of the conversation, Mrs. Gurvey provided the court with an impassioned presentation of the alleged asbestos contamination and continual power outages in the subject property, and thus, her disagreement with the subject property’s assessment. The court tried to gather as much factual information in connection with plaintiffs’ complaint, which had recited that the assessment for three tax years was being challenged (2009 to 2011), in order to ascertain whether it had subject-matter jurisdiction.3 At the court’s request, Montclair’s counsel even had the County Board telefax a copy of its 2011 judgment, and the court initiated a telephonic conference with Montclair’s counsel, Ira Karasick, (counsel to Montclair in the County Board proceedings) to obtain information in this regard.
However, as the court tried to foster settlement discussions, Mrs. Gurvey became louder, got enraged several times, dropped the papers from her file several times, continually interrupted Montclair’s counsel and the judge, accused Montclair’s counsel of improper professional behavior, and called him names. Although the judge told Mrs. Gurvey that it was sympathetic to her anger and frustration, she also requested that Mrs. Gurvey control herself and behave professionally and civilly to Montclair’s counsel, and cease interrupting the judge or Montclair’s counsel. When Mrs. Gurvey continued with her behavior, the court decided to record the informal proceedings and her staff also requested the sheriff’s officer’s presence in the judge’s chambers.4 After this, when Mrs. Gurvey appeared to lose control, interrupt the judge or Montclair’s counsel and call Montclair’s counsel names, the sheriff’s officers advised her to calm down. At no time during the entire informal conference did the judge ever direct the sheriff’s officers or ever threaten Mrs. Gurvey with arrest as she now alleges. Nor did the sheriff’s officers voluntarily make any such threats at any time during the informal conference.
At the end of the conference which lasted about an hour, the court scheduled a telephonic conference call for August 19, 2011 for further management of the case (discovery and trial dates). The court also requested Montclair’s counsel to attempt a settlement of the case despite Mrs. Gurvey’s consistent refusal to allow Montclair to inspect the subject property in connection with her appeal of Montclair’s property tax assessment on the same, and requested Mrs. Gurvey to provide information to Montclair’s counsel in this regard (but only to the extent not otherwise furnished before).
On August 17, 2011, the court received correspondence from Mrs. Gurvey forwarding edifice remediation bills and making arguments with respect to computer records and their effect on this court’s jurisdiction to hear appeals for tax years 2009 and 2010. By letter dated August 17, 2011, Montclair’s counsel objected to the implication that Montclair had generated the computer records, and requested that the August 19, 2011, telephonic conference call be placed on the record. Mrs. Gurvey submitted a letter in response accusing Montclair’s counsel of deceptive conduct and lying to the court.
The telephonic conference call was held on August 19, 2011. The conference ended with the judge requesting the parties to brief the issue of the court’s subject-matter jurisdiction for tax years 2009 and 2010, since it appeared to all that tax year 2011 may have been timely filed. The court set a return date for its sua sponte motion on subject-matter jurisdiction for September 16, 2011, and deadlines for the motion papers and briefs to be submitted in this regard.5
Both parties duly filed their respective pleadings as to this court’s subject-matter jurisdiction for tax years 2009 and 2010. Since Mrs. Gurvey had alleged that she never received the notice of assessment for tax year 2010, and had raised a legitimate issue that Montclair’s response in this regard was hearsay (since the assessor had certified that a third-party mailed the 2010 notices of assessment, but no certification of the third-party was provided), the court set the matter for a plenary hearing only as to tax year 2010. This ensured that plaintiffs would have adequate opportunity to cross-examine Montclair’s witnesses in this regard. The court also directed the parties to address the ruling in Davis & Associates, LLC. v. Stafford Twp., 18 N.J. Tax 621 (Tax 2000) which appeared to be factually similar (alleged lack of receipt by taxpayer of the notice of local property tax assessment). The hearing was set for October 28, 2011.
On the scheduled hearing date, plaintiffs did not appear in court. The court, Montclair’s counsel and witnesses waited for over an hour for plaintiffs. Thereafter, the court reached out to plaintiffs to ascertain the reason for their absence. Mrs. Gurvey responded to the court’s telephone call, and claimed that she had previously notified the court by an e-mail of October 16, 2011 that the plenary hearing date was inconvenient since she had to be in California. Since the court had no record of receiving the e-mail, Mrs. Gurvey forwarded the same to the court. The e-mail (which was not copied to Montclair’s counsel) noted the possibility of Mrs. Gurvey’s unavailability on the scheduled hearing date due to a court hearing in California, but that she would confirm this fact at a later date. Although Mrs. Gurvey claimed she called the court to confirm that her availability on the scheduled date, the court has no record of any such telephone call having been made. The court then asked Mrs. Gurvey or her husband if they intended to appear that day since Mrs. Gurvey was physically present in New Jersey. Mrs. Gurvey stated that they could not appear since she had just been to the hospital. Despite the fact that Montclair’s counsel and witnesses had been waiting for plaintiffs, the court re-scheduled the plenary hearing to December 9, 2011.
Shortly after the telephonic conference, on October 28, 2011, Mrs. Gurvey e-mailed the court arguing that the township should not be permitted to inspect the subject property. She noted that because of the contamination, an inspection was irrelevant, and she additionally claimed the township had waived its right to an inspection in 2009 and 2010. This complaint with respect to the inspection issue followed up on a complaint made in plaintiffs’ September 12, 2011 brief where she accused opposing counsel and other agents of Montclair of sneaking on to her property sixteen times over several years and of taking photographs of her property while she was attending court proceedings. In response, the court advised the parties that any issues regarding discovery would be addressed after the plenary hearing on December 9, 2011.
Sometime thereafter, the court ascertained that there could be an issue as to this court’s subject-matter jurisdiction for tax year 2011 as well. This was because the plaintiffs had filed an appeal directly to the Tax Court (in addition to the County Board) although plaintiffs were ineligible for a direct review in the Tax Court as their assessment was below $1,000,000. See N.J.S.A. 54:3-21. Additionally, plaintiffs had not appealed the County Board’s judgment for tax year 2011 within the forty-five day period of the August 19, 2011 mailing date of that judgment. The court therefore notified the parties on or about October 31, 2011 that the tax year 2011 filing issue would also be addressed at the December 9, 2011 plenary hearing, and provided them an opportunity to offer any submissions in this regard prior to the plenary hearing.
Mrs. Gurvey immediately replied by e-mail, arguing that this court has subject-matter jurisdiction for 2011 due to the direct filing. She also argued Montclair’s counsel had gotten the County Board to dismiss plaintiffs’ 2011 appeal without prejudice on grounds of prior year/s appeals which were pending before the Tax Court.6 This alleged representation by Montclair’s counsel (at the County Board proceedings) conferred subject-matter jurisdiction on this court according to plaintiffs.
A week prior to the hearing date, on Friday afternoon, December 2, 2011, Mrs. Gurvey asked the court to issue subpoenas to Ira Karasick, Esq. (counsel for Montclair at the County Board hearings), among others. On Monday, December 5, 2011, the court advised Mrs. Gurvey that it does not issue subpoenas, that she follow court rules and contact the TCMO for assistance in this regard.
On December 9, 2011, the court held the plenary hearing on its subject-matter jurisdiction for tax year 2010. Mrs. Gurvey cross-examined both of Montclair’s witnesses after their respective direct examinations at length.7 At first Mrs. Gurvey wanted her husband to testify that he did not receive the 2010 notice of assessment. However, after Montclair clarified to the court that it would not raise an issue of the lack of such direct testimony (given that plaintiffs never provided an actual certification in this regard) especially since Mrs. Gurvey is an attorney-at-law and had signed all the pleadings in this regard, plaintiffs waived their request for Mr. Gurvey’s testimony as to the alleged lack of receipt of the 2010 assessment notice.8 Both parties then proffered their arguments in support of their respective motions. While Montclair’s arguments were limited to tax years 2010 and 2011 as directed by the court, Mrs. Gurvey included tax year 2009 also in her arguments.
At the end of the hearing (which lasted about 3 hours) the court announced to the parties that it was ready to read its findings on the record, however, because it was almost 5 p.m., and the opinion would take same time to recite, the opinion would be stated on the record on a day convenient to the parties. At Montclair’s request, the court agreed to do this telephonically and the date and time were fixed for December 13, 2011 at 3:00 p.m. The court agreed to initiate the call at Montclair’s request. Mrs. Gurvey requested the court call her at her home telephone.
Just before 3:00 p.m. on December 13, 2011, Mrs. Gurvey called the court stating that she had just been released from the hospital, and that she was physically unable to make any arguments. The judge’s law clerk explained to Mrs. Gurvey that since the court was rendering its decision, she would not be able to make arguments, and all she had to do was listen to the court’s opinion. The court also offered to adjourn the reading of the bench decision. Mrs. Gurvey stated that if she did not have to speak she would be fine and agreed to proceed with listening in to the court’s opinion.
At about 4 p.m., after the court had reached Montclair’s counsel and patched in Mrs. Gurvey, the court instructed the participants that this was the court’s opinion being read into the record, that there should not be any interruptions, and any disagreement with the court’s opinion would be a subject of appeal, not interruption. The court also informed the parties that at the end of the opinion, Mrs. Gurvey would be given information about how to procure a transcript of the recorded opinion. It was only at this time did Mrs. Gurvey ask if she would be able to get the transcript of the record, and the court assured her that she could. At no time prior to this did she ever demand the record of any proceedings, including the first informal conference in chambers.
Sometime during the court’s reading, Mrs. Gurvey stated that she was weak from a hospital visit and did not want to continue to listen in. When reminded by the court that before rendering its opinion the court had offered an adjournment and that she responded that as long as she did not have to speak she could listen to the decision, Mrs. Gurvey indicated that she “did not know it would take an hour.” The court directed Mrs. Gurvey to let Mr. Gurvey listen in, since he was also a plaintiff. Mrs. Gurvey stated that he was not available9 and then inquired whether the decision and the proceedings on Friday, December 9, 2011 were recorded and available, to which the court replied in the affirmative.
The court then continued to read its decision into the record. At the end of its decision, the court stated that the parties could notify the law clerk for a future conference date as to setting a schedule for discovery and further disposition of the plaintiffs’ complaint for tax year 2011. When the court called out Mrs. Gurvey’s name a few times in this regard, there was no response. It appears that Mrs. Gurvey was off the telephone, and it is not known when or why she lost telephonic connection.
The very next day, the court issued an Order in connection with its opinion and e-mailed the same to the parties. By then, Mrs. Gurvey had sent the letter demanding recusal and disqualification. The letter was two pages long, and was sent by e-mail at 8:52 a.m. on December 14, 2011. The same was also faxed to the court around 10:30 a.m. on December 14, 2011. In the letter, Mrs. Gurvey claimed that the judge “made fun of [her] disability” and “harassed [her] because of it.” Mrs. Gurvey also asserted a request for the recordings of the August 2011 informal conference in chambers where Mrs. Gurvey claimed she was threatened with arrest. The letter ended by saying that she would appeal the court’s ruling and would seek to vacate the same. The court thereafter faxed and e-mailed a letter to Mrs. Gurvey and Montclair’s counsel explaining the method of obtaining a transcript of the recorded opinion, and the web address for this purpose.
On December 16, 2011, Mrs. Gurvey filed a letter styling it as a motion for re-consideration. Mrs. Gurvey claimed that the court was withholding its written order, and that this was not only grounds for the judge’s disqualification and recusal, but also grounds for reconsidering the court’s ruling. Additionally, in this letter, Mrs. Gurvey complained about the expansion of the scope of the hearing of December 9, 2011 to tax years 2009 through 2011. Although the court had e-mailed its December 14, 2011 Order to both parties on that date, it faxed a copy of the same to Mrs. Gurvey on December 16, 2011 since she claimed lack of its receipt.
Thereafter, the court advised the parties that Mrs. Gurvey’s letters of December 14, 2011 and December 16, 2011, despite not being filed in conformance with court rules, would be treated as two separate motions: a motion for recusal and a motion for reconsideration. Mrs. Gurvey then filed e-mails dated December 21, 2011 restating her grounds as motions for reconsideration. Montclair electronically filed its opposition to both motions on December 21, 2011, and the court then set a return date for the motion and permitted plaintiffs until February 3, 2012 to file any reply. No reply was filed.10
CONCLUSIONS OF LAW
I. Motion for Recusal/Disqualification
Rule 1:12-2 provides that “[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge’s disqualification.” The grounds for disqualification are found in R. 1:12-1:
The judge of any court shall be disqualified on the court’s own motion and shall not sit in any matter, if the judge
(a) is by blood or marriage the second cousin of or is more closely related to any party to the action;
(b) is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits;
(c) has been attorney of record or counsel in the action; or
(d) has given an opinion upon a matter in question in the action; or
(e) is interested in the event of the action; or
(f) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.
Paragraphs (c), (d) and (e) shall not prevent a judge from sitting because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein, or because the board of chosen freeholders of a county or the municipality in which the judge resides or is liable to be taxed are or may be parties to the record or otherwise interested.
“The disposition of a motion for disqualification is ‘entrusted to the sound discretion of the trial judge whose recusal is sought.’” Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div. 2009) (quoting Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (internal quotations omitted)). “[A] judge need not ‘withdraw from a case upon a mere suggestion that he is disqualified unless the alleged cause of recusal is known by him to exist or is shown to be true in fact.’” Id. (quoting Panitch, supra, 339 N.J. Super. at 66-67 (internal quotations omitted)). However, “[i]t is unnecessary to prove actual prejudice on the part of the court, but rather ‘the mere appearance of bias may require disqualification”’ so long as the belief of unfairness is “‘objectively reasonable.’” Panitch, supra, 339 N.J. Super. at 67 (quoting State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850 (1997)).
Cannon 3(C)(1) of the Code of Judicial conduct provides as follows:
A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a witness concerning it;
(c) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child or any other member of the judge’s family residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding or any other interest that could be affected by the outcome of the proceeding;
(d) The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as, or is in the employ of or associated in the practice of law with, a lawyer in the proceeding;
(iii) is know by the judge to have an interest that could be affected by the outcome of the proceeding;
(iv) is to the judge’s knowledge likely to be a witness in the proceeding.
The court begins its analysis by noting that a motion by a party to disqualify a judge must be made before trial or argument. R. 1:12-2. Plaintiffs made their motion to disqualify (i) after the conclusion of the plenary hearing (during which they had full and ample opportunity to examine Montclair’s witnesses and proffered at length their arguments that this court has subject-matter jurisdiction for tax years 2009 through 2011) and, (ii) after conclusion of the court’s rendition of its December 13, 2011 oral opinion wherein the court found that it lacked jurisdiction over tax years 2009 and 2010, but had subject-matter jurisdiction over the 2011 tax year. On these grounds alone, plaintiffs’ motion to disqualify is not justified. Nevertheless, the court will relax R. 1:12-2 pursuant to R. 1:1-2 and address plaintiffs’ late motion for disqualification and recusal so it reaches the merits of plaintiffs’ contentions.
The only sub-sections if at all applicable would be R. 1:12-1(f) (if “there is any other reason” precluding “a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so”) or Judicial Canon 3(C)(1)(a) (“the judge has a personal bias or prejudice concerning a party or a party’s lawyer”). A reasonable interpretation of those provisions is to require recusal when a judge has, or can reasonably be seen as having, a personal interest or bias that might preclude a fair hearing and judgment for the parties before the court. This understanding of the law is reflected in R. 1:12-1 and Cannon 3(C)(1). These provisions list instances in which the judge or a member of the judge’s family has, or can objectively been seen as having, a personal stake in the outcome of the proceedings. Recusal is appropriate where a judge’s personal interests may affect the outcome of the matter over which the judge presides or where an objectively reasonable doubt may exist regarding the judge’s ability to render an impartial judgment.
Thus, in State v. McCabe, 201 N.J. 34, 38 (2010), our Supreme Court ruled that recusal was required where a municipal court judge presided over a drunk driving trial in which defense counsel was the judge’s opposing counsel in an unrelated matter pending in another court. In DeNike v. Cupo, 196 N.J. 502, 507 (2008), recusal was required where the judge presided over a trial of a matter while negotiating with the party’s attorney for the judge’s post-retirement employment. Cf. State v. Marshall, supra, 148 N.J. at 278-279 (recusal not required by out-of-court statements by trial judge regarding the proceeding); Ferren v. City of Sea Isle City, 243 N.J. Super. 522 (App. Div. 1990) (recusal not required where judge presided at trial in which defendant had been represented previously by judge’s former law partner).
The undersigned has no personal stake, interest or bias in the outcome of this matter. She is not related to any party to the litigation. She does not socialize with either party. She has no contact with either party outside of the litigation and the courtroom in connection with plaintiffs’ litigation. She has no interest in the subject property whose tax assessment is being contested by plaintiffs.
That the court ruled against the plaintiffs for two out of the three tax years is not an objective basis for the plaintiffs’ speculation or suspicion that the undersigned cannot render a fair judgment with respect to plaintiffs’ claims. A party cannot disqualify a judge because the party is dissatisfied with the outcome of a trial. Plaintiffs’ position in this regard, if upheld, would effectively eviscerate N.J.S.A. 2B:13-6(b) by requiring the recusal of Tax Court judges from every matter in which they are unsuccessful. The recusal rule and canon could not have been intended to be applied in this fashion. While plaintiffs’ dissatisfaction with this court’s rulings might be offered in support of an appeal, they do not properly form the basis for disqualification.
Plaintiffs’ claim that the judge is biased and hostile because (i) she threatened to arrest Mrs. Gurvey during the informal conference in chambers; (ii) she mocked Mrs. Gurvey’s disabilities; and (iii) she rendered an opinion on the record which was too long for Mrs. Gurvey to stay on the telephone to listen in from her residence since she had just returned from the hospital. These allegations are unfounded, and do not require disqualification of the undersigned.
First, no individual, including the judge, ever threatened to “arrest” Mrs. Gurvey during the informal conference. The judge did ask Mrs. Gurvey to control her outbursts and unprofessional behavior towards the court and her adversary. However, her attempt to control proceedings before her, formal or informal, so that there is professional decorum maintained at all times, is not grounds for her disqualification, especially when she never made any hostile or insulting remarks to any party at any point during the proceedings. The judge has an obligation to maintain control of any proceedings before the court, therefore, it can require professionalism and civility be maintained. These requirements do not give rise to claims of hostility or bias by the judge, especially when they are expected from any and all parties appearing before the court.
While the judge did record the informal proceedings, and have a sheriff’s officer present in her chambers, she did so after it had become apparent that Mrs. Gurvey ignored the judge’s requests to behave calmly and professionally to both the judge and Montclair’s counsel, and to ensure safety. Requiring the presence of an officer is not unreasonable. Indeed, the sheriff’s officers are physically present in the building throughout the working day, and monitor the courts, chambers and staff offices to protect the safety of the court personnel and the general public. See generally, N.J.S.A. 2B:6-1(d) (sheriff of a county required to provide “security for the” courts in that county); In re Callinan, 384 N.J. Super. 257, 265 (Law Div. 2005) (“State legislation requires that security be provided by each County Sheriff for the Superior Courthouses located in that county. Lawyers and judges . . . are entitled to the confidence that they are more secure inside the courthouse where armed Sheriff's officers provide security . . .”). Mrs. Gurvey was never singled out in terms of a sheriff’s officer being present in the judge’s chambers. Indeed, the informal conference began and proceeded for at least an hour with only the parties, the judge and her law clerk, which itself is not a violation of the court rules. See R. 1:2-2 (“. . .in the Tax Court, all proceedings in court shall be recorded verbatim except, unless the court otherwise orders, settlement conferences, [and] case management conferences . . . ). And at no time during the entire informal conference did the judge ever direct the sheriff’s officers or ever threaten Mrs. Gurvey with arrest, nor did the sheriff’s officers voluntarily make any such statement as to an arrest.
Second, at no point during the entire proceedings did the judge ever mock or even comment upon Mrs. Gurvey’s alleged disability. The court routinely accommodated every one of Mrs. Gurvey’s requests for adjournments whether they were sought on grounds of her health or because she had to attend court hearings in other jurisdictions. When plaintiffs failed to appear on the October 28, 2011 plenary hearing date, and the court called Mrs. Gurvey to confirm her availability later that day, it re-scheduled the hearing rather than dismiss the matters, after Mrs. Gurvey indicated her unavailability because she was just out of the hospital. These accommodations were made by the court, and not objected to by Montclair despite the fact that neither the court nor Montclair’s counsel had any record of an adjournment request or a confirmation of the same, nor was there was any record of any e-mail sent by the court confirming the adjournment and providing a new date for the hearing. Similarly, on December 13, 2011 when the court was to render its oral opinion, the court offered to postpone the same when Mrs. Gurvey informed the judge’s law clerk that she had just been released from the hospital, and would not be able to “make arguments” during the court’s rendition of its opinion. Mrs. Gurvey declined the offer of postponement stating that she was fine as long as she did not have to talk.
It was not improper for the judge to continue reading her opinion into the record after Mrs. Gurvey interrupted the judge saying the opinion was taking too long for her to continue listening in. The court is not mandated to have the parties listen in during the reading of a bench opinion. All the judge is required to do is notify the parties that it would be rendering its oral opinion on a particular day. See R. 1:6-2(f) (where a motion “was argued and the court intends to place its findings on the record at a later date, it shall give all parties one day’s notice, which may be telephonic, of the time and place it shall do so”). The parties are not obligated or required to listen to the oral opinion. Mrs. Gurvey was thus not obligated to participate in the telephonic hearing of the court’s oral opinion, and having decided to do so, cannot require the court to cease rendering its oral opinion because she felt that it was taking too long. Indeed, the court stated that she could have her husband listen in (since her husband, also a plaintiff, was present in court at the December 9, 2011 hearing and was notified of the date and time the court would read its opinion into the record), failing which she could always order a transcript of the recording. Mrs. Gurvey ascertained whether she would be able to get a transcript of the recording and the judge assured her that she could, and would provide her details in this regard after completing the reading of the opinion into the record. Thus, the court’s continuation of rendering its oral opinion telephonically did not violate plaintiffs’ due process rights, nor did it constitute a failure to accommodate the plaintiffs’ disabilities. The court and this judge have taken no action to deprive plaintiffs of their rights to fully participate in this litigation.
Further, plaintiffs’ claim that the court violated their rights under the ADA by its method of delivering the opinion is not credible given that the court’s opinion was read telephonically as an accommodation, and the court did not require plaintiffs’ presence in the court. Indeed, the court used the plaintiffs’ home number provided by plaintiffs themselves. At no time during the informal conference in chambers or during the plenary hearing did Mrs. Gurvey ever state to the court that she was ill and could not continue to proffer her submissions. Notably, the TCMO had initially sent plaintiffs a letter asking for details of any accommodation that was sought by plaintiffs (since plaintiffs’ case information statement had indicated that an ADA accommodation would be needed) with adequate documentation or backup in this regard. No response was ever received from plaintiffs.
Last, plaintiffs improperly claim that because they did not receive the court’s written order in connection with the oral opinion the undersigned is biased. The court’s written order was e-mailed to both parties on December 14, 2011, which was the next day after it had rendered its oral opinion. There was no notification on the court’s e-mail that the same was undelivered or unable to be delivered. Additionally, the e-mail was delivered to the same e-mail address plaintiffs had been using to communicate with the court throughout the entirety of the proceedings. Regardless, upon receipt of plaintiffs’ December 16, 2011 letter claiming lack of receipt, the court immediately and on the same day, faxed them a copy of the order. Consequently, plaintiffs’ basis for claiming a bias for lack of receipt of the court’s order dated December 14, 2011 is meretricious.
Plaintiffs’ argument that they were denied due process is simply not supported by the record in this matter. At every stage of the proceedings, whether they were conferences (in-person or telephonic), briefings or arguments, the court provided plaintiffs full and fair opportunity to prosecute the issue of this court’s subject-matter jurisdiction. Although the court raised the issue of jurisdiction sua sponte, it provided plaintiffs full opportunity to brief the issue; gave sufficient time to file their pleadings; and granted their adjournment requests whenever requested. When plaintiffs raised the issue of hearsay as to tax year 2010, the court scheduled a plenary hearing in this regard. When plaintiffs failed to appear on the scheduled date of the plenary hearing, the court re-scheduled the same so that they would have fair opportunity to cross-examine Montclair’s witnesses. When plaintiffs initially asked to have Mr. Gurvey testify on whether he received the 2010 tax bill, the court ensured that Montclair would not make this an issue based on the fact that the plaintiffs never provided a certification or affidavit in this regard in their moving papers. Only after this clarification, which was sought by the court, did Mrs. Gurvey waive her request for direct examination by her of her husband as to their alleged non-receipt of the 2010 tax bill. These facts evidence that plaintiffs’ claim of violation of their due process rights is unsupported.
Based on the above reasons and findings, the court concludes that this judge’s disqualification or recusal is not warranted. Therefore, plaintiffs’ motion for disqualification and recusal is denied.
II. Motion for Reconsideration
A motion for rehearing or reconsideration is governed by R. 4:49-2. The rule requires that a formal motion be served not later than twenty (20) days after service of the judgment or order. The rule also requires that the motion “state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.” Ibid.
A motion for rehearing or reconsideration is granted sparingly. Thus, such a motion will be granted “only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence . . .” D’Atria v. D’Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Despite this restrictive scope, a court may, “in the interest of justice” consider any “evidence” that the litigant claims is “new or additional . . . which it could not have provided” during the initial hearing. Id. at 401. However, even consideration of such evidence is at the court’s “sound discretion.” Ibid. Thus, “repetitive bites at the apple” should not be tolerated or “the core will swiftly sour.” Ibid. Therefore, a court should “be sensitive and scrupulous in its analysis of the issues in a motion for reconsideration.” Id. at 402.
Plaintiffs’ December 16, 2011 letter seeks reconsideration of this court’s December 14, 2011 order on grounds that 1) the undersigned should be disqualified and recused; 2) the undersigned considered tax years 2009 and 2011 at the plenary hearing that the court had advised the parties was meant to address only tax year 2010, thus she “went way beyond the scope of that notice;” and 3) the judge “never heard the 2009 matter at all and clearly misunderstand the facts.” None of these grounds meet the standards for a motion for reconsideration.
Plaintiffs desire for the judge’s disqualification and recusal (which this court has decided as being unfounded, see supra) do not support a conclusion that this court’s decision finding the plaintiffs’ appeals for tax years 2009 and 2010 as untimely must be re-visited. Although the court raised the issue of jurisdiction sua sponte, it provided full opportunity for the parties to brief the issue. After carefully considering all the facts before the court, from the pleadings and evidence (testimonial and documentary), the court rendered its decision. Thus, the court’s opinion was not “based upon a palpably incorrect or irrational basis.”
Plaintiffs are correct in asserting that the court had initially advised the parties (after they had fully briefed the jurisdiction issue for tax years 2009 and 2010) that the court’s plenary hearing would be confined only to tax year 2010 because plaintiffs had properly raised the hearsay objection to Montclair’s opposition with respect to tax year 2010 and because there were no disputed facts with respect to tax year 2009. However, at that time, the court and parties operated under the assumption that tax year 2011 was timely filed. Prior to the plenary hearing however, the court discovered that the plaintiffs’ dual filing of appeals for tax year 2011 (before the County Board and the Tax Court), and the fact that the County Board had issued a judgment from which plaintiffs did not file a timely appeal to the Tax Court may also be an issue of jurisdictional import. Rather than decide the issue based on the filings and documents before the court, the court provided both parties the opportunity to address the plaintiffs’ dual appeals vis-à-vis jurisdiction. For purposes of efficiency, the court advised the parties that they could provide any briefs in this regard prior to the re-scheduled plenary hearing date, and submit any arguments on the date of that hearing. The parties did so. Since both parties were afforded time and opportunity to address tax year 2011; the court saved time, effort and costs in deciding all tax years together rather than piecemeal; and the court decided that tax year 2011 was timely filed,11 the plaintiffs’ contention that the court should reconsider its decision is baseless.
Plaintiffs claim that reconsideration is warranted because “the court never heard the 2009 matter at all.” This claim is unsupported. Plaintiffs fully briefed the issue of timeliness for tax year 2009. Since there were no disputed facts as to this tax year, the court did not require, and thus, did not schedule a plenary hearing for tax year 2009. Nonetheless, plaintiffs proffered lengthy arguments that tax year 2009 was also timely, as to which Montclair objected on grounds that the plenary hearing was supposed to only address tax years 2010 and 2011. In their motion for reconsideration, plaintiffs have not provided any new or newly discovered evidence that was unavailable to plaintiffs before or during the scheduled plenary hearing, to justify this court’s re-visitation of its decision. All they claim is that the judge misunderstood the facts for 2009. This may be a ground for appeal to a higher court, not for reconsideration by this court.
Finally, plaintiffs re-argue that a remedy under the Correction of Errors statute is still available. Notably, plaintiffs had, for the first time, in their reply brief to Montclair’s opposition, raised a “Correction of Errors” argument.12 Although impermissible, the court still considered these arguments and made clear findings. Indeed, the court noted that the plaintiffs could file separate complaints stating Correction of Errors as a cause of action for tax years 2009 through 2011 because as of the date of the court’s opinion (December 13, 2011), the time limit, namely, three years from the disputed tax years, had not yet run.
Plaintiffs’ motion for reconsideration is nothing more than a repetition of their arguments already proffered to and considered by this court. Plaintiffs have not provided this court with any “controlling decisions which [they] believe[] the court has overlooked or as to which it has erred” pursuant to R. 4:49-2. Reconsideration is not to be used to “reargue a motion.” Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). Plaintiffs’ disagreement with this court’s decision is not grounds for this court to reverse itself via reconsideration. “A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the Court. Rather, the preferred course to be followed when one is disappointed with a judicial determination is to seek relief by means of either a motion for leave to appeal or, if the Order is final, by a notice of appeal.” D’Atria, supra, 242 N.J. Super., at 401.
In sum, plaintiffs have not met the standards of R. 4:49-2. The court finds no grounds on which to vacate the December 14, 2011 order and final judgment. Therefore, plaintiffs’ motion for reconsideration is denied.
An Order denying plaintiffs’ motions is enclosed.
Very truly yours,
Mala Narayanan, J.T.C.
1 The judge generally employs this practice where the taxpayer appealing his or her property tax assessment is self-represented, and has not retained a real estate valuation expert witness to prove his or her case, in order to foster a settlement of the matter. The informal conference has resulted in several pro se taxpayers negotiating a settlement satisfactory to the taxpayer and the defendant.
2 Until this matter, every pro se taxpayer who has appeared in the judge’s chambers for an informal conference had been deferential and calm. Therefore, the judge presumed the same would be true of Mrs. Gurvey, thus had initially declined the sheriff’s officer’s offer to be present in chambers during the conference.
3 Plaintiffs’ complaint was filed in February 2011. At this time the statute of limitations for appealing tax years 2009 and 2010 were long past since the deadline for filing an appeal for each tax year is generally April 1 of the tax year at issue for direct review, see R. 8:4-1(a)(4), and the deadline for a complaint to review the action of a County Board of Taxation is within 45 days after the date of the service of the County Board’s judgment. R. 8:4-1(a)(2).
4 The court is continually monitored by on-premise sheriff’s officers. These officers are physically present during any formal proceedings in the courtroom for monitoring the safety of the court, its staff, and the public. They also monitor the staff’s offices in this regard. For the same reasons, they are present in the judge’s chambers during any informal proceedings the judge has with litigants or counsel for litigants, unless the judge declines the need for their presence.
5 Mrs. Gurvey subsequently requested an adjournment of the deadlines due to power failure from Hurricane Irene, which was granted. New deadlines were set and the motion was made returnable October 6, 2011. At another point in these proceedings, an adjournment request was made because she averred she had to appear before the Third Circuit Court of Appeals.
6 The County Board’s judgment for tax year 2011 indicated a dismissal “without prejudice” due to “Tax Court pending” pursuant to Code “6A.” The Codes are listed on the back of the judgment. Code 6 is “Dismissal Without Prejudice” and subsection (A) states “Tax Court Pending for (year) ___.” No tax year was filled in the blank space.
7 Mr. Gurvey was also present during the entire hearing.
8 Mrs. Gurvey immediately responded that she was not a practicing attorney but a television producer and inventor.
9 Mr. Gurvey should have been aware of the telephonic rendition of the court’s opinion since he appeared in court on Friday December 9, 2011 where the court provided the date, time and method of the reading of the court’s decision.
10 Due to the flood of e-mails from Mrs. Gurvey, the court advised the parties on December 22, 2011 by e-mail that it would proceed as follows: (1) as to plaintiffs’ letter seeking the judge’s disqualification and recusal, the court would entertain any opposition from Montclair by December 29, 2011 to which plaintiffs could file a reply by January 3, 2012; (2) as to plaintiffs’ motion for reconsideration, the court would set a return date of January 20, 2012, after plaintiffs filed a motion compliant with the court rules, specifically, R. 4:49-2, on or before January 4, 2012, and as to which Montclair could timely file its opposition. Neither party complied with any of the directions. Mrs. Gurvey then sought an extension of time to file papers due to her medical reasons. The court then, by its letter of January 3, 2012, granted the extension request, and advised the parties that “in the interests of time and efficiency,” the court would treat plaintiffs’ December 14, 2011 letter as a motion for recusal, their December 16, 2011 letter as a motion for reconsideration, Montclair’s December 21, 2011 e-mail as its opposition to both motions, and provided plaintiffs until February 3, 2012 to file any reply to Montclair’s opposition.
11 Thus, plaintiffs’ motion for reconsideration on grounds that “for 2011, my husband and I remain absolutely entitled to relaxation of extension rules for spontaneous asbestos contamination and did file such extension in 2011. A fee was remitted to Trenton,” makes no sense.
12 N.J.S.A. 54:51A-7, also known as the “Correction of Errors” statute, permits the Tax Court to “correct typographical errors, errors in transposing, and clerical mistakes in tax assessments.” The statute “does not permit a correction of assessment under the category of ‘mistakes in tax assessments’ based on incorrect information not caused by typographical, transposing, or mechanical errors.” Hovbilt, Inc. v. Tp. of Howell, 263 N.J. Super. 567, 572 (App. Div. 1993) (emphasis added).