The opinion of the court was delivered by: Kuskin
In this 1996 local property tax appeal, the defendant Borough of Washington filed a motion to dismiss pursuant to N.J.S.A. 54:51A-1c which provides:
If the tax court shall determine that the appeal to the county board of taxation has been ... (2) dismissed because of appellant's failure to prosecute the appeal at a hearing called by the county tax board ..., there shall be no review.
The plaintiff taxpayer filed a Petition of Appeal with the Warren County Board of Taxation contesting the 1996 assessment on the subject property. By notice dated April 18, 1996, the County Board scheduled the appeal for hearing on Tuesday, May 14, 1996 at 9:15 a.m. At that time, the attorney for the taxpayer appeared before the County Board, having previously engaged an appraiser for the taxpayer. The attorney advised the Board that the appraisal report for the appeal had not been completed and requested either a short adjournment of the hearing date or an affirmance of the assessment without prejudice. Such request for "affirmance without prejudice" was the equivalent of a request for dismissal without prejudice as contemplated by the last sentence of N.J.S.A. 54:51A-1c. The attorney for the taxpayer did not present an appraisal at the May 14 hearing date nor did the appraiser himself or herself appear to explain the reasons for failure to complete the appraisal report in time for the hearing.
Counsel for the defendant Borough of Washington moved to dismiss the appeal for lack of prosecution pursuant to N.J.A.C. 18:12A-1.9(e) which provides:
"A petitioner shall be prepared to prove his case by completion [sic] and competent evidence. In the absence of some evidence, the board may dismiss the petition. In the case of failure to appear, the board may dismiss the petition for lack of prosecution."
The motion to dismiss was also in accordance with the procedure suggested in a memorandum dated May 3, 1996 from the Warren County Board of Taxation to all tax assessors in Warren County. Paragraphs 4 and 5 of this memorandum provide:
4. All appraisals must be submitted to the municipality 7 days prior to the hearing. If your municipal attorney requests that a particular appeal be Dismissed for Lack of Prosecution because the appraisal was late, the Board will Dismiss the appeal Without Prejudice. This will give the taxpayer an opportunity to appeal to the tax court.
5. If an attorney or taxpayer comes before the board with absolutely NO evidence, the municipal attorney should request the appeal be Dismissed for Lack of Prosecution. The Board may reschedule the appeal, if time allows, or they may Dismiss the appeal for Lack of Prosection.
The Warren County Board denied the taxpayer's request for adjournment or affirmance without prejudice and granted the municipality's motion to dismiss. On May 14, 1996 the Board issued its judgment under Judgment Code # 40, entitled "Other", with the explanation "Dismissed for Lack of Prosecution". The Board apparently elected not to utilize Judgment Code 2 entitled "Dismissed for Lack of Prosecution" with Code 2b. being "No Evidence Provided".
The taxpayer appealed the dismissal to the Tax Court. The Borough, as noted above, now seeks dismissal of the appeal under N.J.S.A. 54:51A-1c.
This is another in a series of cases testing the definition of dismissal "for lack of prosecution" (the terminology used in N.J.A.C. 18:12A-1.9(e)) and dismissal "for failure to prosecute" (the terminology used in N.J.S.A. 54:51-1c). In Veeder v. Berkeley Tp., 109 N.J. Super 540, 546 (App. Div. 1970), the Appellate Division established the following standard to be applied in reviewing a dismissal for lack of prosecution by a county board of taxation:
"The dismissal of an appeal for failure to prosecute is a drastic step and ordinarily should not be invoked unless it is clear that the conduct of the offending party is deliberate."
In SAIJ Realty Inc. v. Upper Deerfield Tp., 5 N.J. Tax 292, 298 (Tax 1983), the Tax Court required "deliberate and contemptuous" conduct to justify a dismissal for lack of prosection.
In Pipquarryco, Inc. v. Hamburg Borough, 15 N.J. Tax 413 (Tax 1996), the Tax Court denied a motion to dismiss under N.J.S.A. 54:51A-1c where, on the first scheduled hearing date before a county board of taxation, the taxpayer had retained an appraiser, submitted the appraisal, appeared on the hearing date with the appraiser and requested an adjournment so that both the taxpayer and the municipality could prepare properly for the hearing. In so holding, this Court noted that, in ruling on a motion to dismiss for lack of prosecution, a county board is "circumscribed by the same obligations to 'administer Justice' as are applicable to the Tax Court [under Rutherford ...