Rossi v. Island Heights Borough ( 2021 )

NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
TAX COURT OF NEW JERSEY
120 High Street
KATHI F. FIAMINGO Mount Holly, NJ 08060
JUDGE
(609) 288-9500 EXT 38303
February 5, 2021
Via eCourts
Christopher J. Connors, Esq.
Dasti, Murphy, McGuckin, Ulaky,
Koutsouris & Connors
Isabelle Barroqueiro Rossi
Island Heights, NJ
Re: Rossi v Island Heights Borough
Docket No. 011929-2020
Dear Counsel:
This letter constitutes the court’s opinion with respect to defendant’s motion to dismiss
plaintiff’s complaint for lack of jurisdiction. As discussed more fully below the court grants
defendant’s motion.
I. Statement of Facts and Procedural History
On July 27, 2020 the Ocean County Board of Tax Appeals (“County Board”) issued a
judgment reducing the 2020 real property tax assessment of the real property known as Lot 1.01
in Block 18 on the tax map of the Island Heights Borough as follows:
Original Assessment Judgment
Land - $177,500 Land - $177,500
Improvement - $154,300 Improvement - $148,300
Total $331,800 Total $325,800
The resulting memorandum of judgment was signed by the County Board Commissioners
and attested to by the Ocean County Tax Administrator on the same date. A stamped date on the
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memorandum of judgment indicates the date of mailing as July 27, 2020. The memorandum of
judgment is addressed, for the purposes of mailing, to: “Barroqueiro-Rossi, Isabelle, 304
Lexington Ave., Toms River, NJ 08753.”
Isabelle Barroqueiro-Rossi (“plaintiff”) filed a complaint contesting the action of the
County Board on October 26, 2020. A deficiency notice was sent to plaintiff on October 28, 2020,
requiring plaintiff to provide a copy of the memorandum of judgment issued by the County Board.
On November 12, 2020, plaintiff submitted the required memorandum of judgment.
On November 23, 2020 defendant filed the within motion to dismiss plaintiff’s complaint
for lack of jurisdiction, asserting that plaintiff’s complaint was not filed within the time provided
by N.J.S.A. 54:51A-9. Plaintiff filed a certification in opposition to the motion in which she
certifies that “[d]ue to severe hardship from Covid-19 restrictions and effects (sic) with [c]hildren’s
schooling schedule and demands, work obligations and other personal and family obligations”
defendant’s motion should be denied. Plaintiff further certifies that “[t]hese hardships limited my
time and therefore I submitted my paperwork late.”
II. Conclusions of Law
The Tax court is a court of limited jurisdiction, defined by statute. McMahon v. City of
Newark, 195 N.J. 526, 546 (2008) (citing N.J.S.A. 2B:13-2 and Union City Assocs. v. City of
Union City, 115 N.J. 12, 23 (1989)). “Failure to file a timely appeal is a fatal jurisdictional defect.”
F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 425 (1985) (citing Clairol, Inc. v.
Kingsley, 109 N.J. Super. 22 (App. Div.), aff’d, 57 N.J. 199 (1970), appeal dismissed, 402 U.S.
902 (1971)). This is true even in the absence of harm to the defendant municipality. Lawrenceville
Garden Apartments v. Township of Lawrence, 14 N.J. Tax 285 (App. Div. 1994).
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A complaint seeking review of adjudication or judgment of the county board of taxation
must be filed within 45 days of the service of the judgment. N.J.S.A. 54:51A-9(a). Service of
judgment of a County Board of Taxation is deemed complete as of the date the judgment is mailed,
subject to the provisions of R. 1:3-3. R. 8:4-1(a)(2). R. 1:3-3 provides “[w]hen service of notice
or paper is made by ordinary mail, and a rule or court order allows the party served a period of
time after the service thereof within which to take some action, 3 days shall be added to the period.”
Thus, applying the foregoing rules to the matter at hand, assuming the memorandum of
judgment was mailed on July 27, 2020, the date by which the complaint was required to be filed
in Tax Court was Sunday, September 13, 2020. However, R. 1:3-1 provides that if the last day for
which action is to be taken is a Saturday, Sunday or legal holiday, the period is extended until the
end of the next day which is not a Saturday, Sunday or legal holiday. Thus, the last day for filing
the complaint in this matter was Monday, September 14, 2020. Plaintiff’s complaint in the tax
court was not filed until October 26, 2020, well after the statutory deadline.
Plaintiff does not assert that she did not receive the memorandum of judgment. Instead
plaintiff maintains that the demands placed upon her delayed her response to the complaint within
the time required for her to act. Therefore, the court finds plaintiff’s complaint is untimely which
deprives this court of subject-matter jurisdiction to decide the merits of the complaint since filing
deadlines are considered statutes of limitation in the Tax Court and are strictly enforced. Mayfair
Holding Corp. v. Township of North Bergen, 4 N.J. Tax 41, 41 (Tax 1982) (granting defendant’s
motion to dismiss plaintiff’s appeal for lack of jurisdiction because it was filed one day after the
last day prescribed by statute for filing the appeal); Sun Life Assurance Co. of Canada v. City of
Orange, 2 N.J. Tax 25, 28 (Tax 1980) (denying plaintiff’s motion to relax the statutory filing
deadlines even with the adversary’s consent).
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CONCLUSION
For the aforementioned reasons, the Township’s motion is granted. Plaintiff’s complaint
is dismissed with prejudice.
Very truly yours,
Kathi F. Fiamingo, J.T.C.
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