Two Guys from Harrison, Inc. v. Assessor of Henrietta

—Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the follow 880 ing Memorandum: Petitioner appeals and respondents cross-appeal from an order and judgment confirming the Referee’s report after a hearing in this tax certiorari case. We agree with the implicit determination in Supreme Court’s decision and the Referee’s report that petitioner met its threshold burden of rebutting the presumption of validity of the assessment by establishing the “existence of a valid and credible dispute regarding valuation” (Matter ofFMC Corp. v Unmack, 92 NY2d 179, 188). The court erred, however, in purporting to agree with the Referee that, with respect to all of the tax years at issue, petitioner had failed to meet its ultimate burden of establishing by a preponderance of the evidence that the assessment was excessive. Rather, the Referee properly determined that petitioner failed to meet that burden only with respect to the 1993-1994 tax year. With respect to the remaining tax years, the Referee was then free to “reject expert testimony and arrive at a determination of value that [was] either within the range of expert testimony or supported by other evidence” (ARC Machining & Plating v Dimmick, 238 AD2d 849, 850). We agree with respondents, however, that the computation of interest was incorrect. We modify the order and judgment, therefore, by providing that the rates of interest are as follows: 6% for 1994-1995; 9% for 1995-1996; 7% for 1996-1997; and 8% for 1997-1998 (see, RPTL 726 [2]; Tax Law § 697 |j] [2], [3]). We otherwise affirm for reasons stated in the decision at Supreme Court (Kehoe, J.). (Appeals from Order and Judgment of Supreme Court, Monroe County, Kehoe, J. — RPTL.) Present— Pigott, Jr., P. J., Wisner, Hurlbutt, Burns and Lawton, JJ.