Petitioner commenced this special proceeding, pursuant to Article 7 of the Real Property Tax Law ("RPTL"), seeking to reduce the real estate tax assessment of its real property, located at 2001-2013 Walden Avenue, Town of Cheektowaga, New York (the "Property"), for the 2012-[*2]13 tax year.^[FN1] The Property consists of approximately 210,000 square feet of gross leaseable area ("GLA")^[FN2] and is operated as a multi-tenant retail center on 24.46 acres of land.

Petitioner has moved, pursuant to CPLR §3212, for summary judgment.

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law (Ferluck AJ v. Goldman Sachs & Co., 12 NY3d 316, 230 [2009]). This requires sufficient evidence to shift the burden to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of genuine fact (Id at 320). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (Gilbert Frank Corp. v. Fev. Ins. Co., 70 NY2d 966, 967 [1988] [citation omitted]). In this regard, CPLR §3212(b) provides that a summary judgment motion "shall be supported by affidavit . . . by a person having knowledge of the facts . . . ." Accordingly, "[a] conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does nor establish the proponent's prima facie burden" (JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384-85 [2005]) (internal citations omitted).Moreover, factual issues raised by the opposing party must be genuine, as opposed to speculative (Trahwen LLC v. Ming 99 Cent City No.7, Inc., 106 AD3d 1467, 1468 [4th Dept 2013]). DISCUSSION

For the 2012-13 tax year, the Property was assessed at $9,650,000.00, and the Town of Cheektowaga's equalization rate was 62%. Accordingly, the Property's equalized fair market value for the 2012-13 tax year was $15,564,516.00, as calculated by dividing the assessed value ($9,650,000) by the equalization rate (62%).

On November 16, 2012, Petitioner sold the Property to Buffalo WVP Associates for $10,500,000.00 (the "Sale"). Petitioner contends that the Sale should serve as the basis for the challenged assessment, resulting in an assessment of $6,510,000.00 ^[FN3] , because the Sale was at arm's length and Petitioner and Buffalo WVP Associates are not related companies.

Petitioner relies on the well settled law that, in valuing real property for real estate tax assessment purposes,

However, a recent arm's-length sale of the subject property is not conclusive evidence of value. Rather, it is only one element for consideration weighed with all other relevant factors (Application of Ed Guth Realty, Inc., 16 AD2d 372 [4th Dept. 1962]).

Respondents and Intervenor-Respondent contend that the motion should be denied, because the Sale was not at arm's-length.

On December 29, 2011, non-party, Capmark Bank, obtained title to the Property in a mortgage foreclosure proceeding, via a Deed in Lieu of Foreclosure, when W.P. Walden Associates, LP ("W.P. Walden"), as owner and mortgagor, conveyed the Property to Capmark Bank, as mortgagee. Respondents and Intervenor-Respondent contend that Petitioner is a subsidiary of Capmark Bank or, at a minimum, that they are at least related companies, as evidenced by Petitioner's administrative Complaint on Real Property Tax Assessment for 2012 (the "Complaint"), dated May 21, 2012. The Complaint identifies Petitioner, "CB Walden Village, LLC" as the "Name . . . of owner(s)" of the Property, but identifies "Capmark Bank" and the Bank's address as the "Mailing address of owner(s)."

As of December 29, 2011, the outstanding principal of the mortgage loan from Capmark Bank to W.P Walden relative to the Property amounted to approximately $15,202,000.00, as compared to the Sale price of $10,500,000.00 less than a year later.Respondent and Intervenor-Respondent contend that the Sale is the equivalent of a "short sale" made to obviate foreclosure. By definition, a short sale is not an arm's-length sale. Instead, it is

Petitioner's submission consists of the affidavit of its attorney and a memorandum of law. Petitioner did not submit an affidavit of one of its principals or someone otherwise having personal knowledge of the terms and conditions of the Sale, in derogation of JMD Holding Corp (4 NY3d at 384-85). Petitioner contends that the Sale was arm's length because it and the buyer are not related; neither party was compelled to partake in the Sale; and it marketed the Property with J.R. Militello Realty, Inc., a local commercial realtor. However, counsel's affidavit fails to address the apparent relationship between Petitioner and Capmark Bank, and lacks details regarding the terms of the Sale and the listing, such as how long the Property was listed on the [*4]open market and whether any other offers were submitted and/or considered.

Thus, genuine issues of material fact exist regarding the relationship between Petitioner and Capmark Bank, and whether the Sale, which amounted to approximately 69% of the outstanding mortgage, was the equivalent of a short-sale, which preclude a finding that the Sale was at arm's-length (806 Fifth Ave, Corp., Tax Comm. Of City of New York, 8 NY2d 29 [1960] [a recent sale does not reflect market value if made under duress]; Krzys v. Town of Clifton Park, 267 AD2d 658 [3rd Dept 1999] [questions of fact exist as to whether property purchased at a foreclosure auction represents an arms-length transaction]).

For the foregoing reasons, it is hereby

ORDERED, that Petitioner's motion for summary judgment is denied in all respects.

This constitutes the Decision and Order of this Court. Submission of an order by the Parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not