| Matter of Sessa v Board of Assessors of Town of N. Elba |
| 2007 NY Slip Op 10000 [46 AD3d 1163] |
| December 20, 2007 |
| Appellate Division, Third Department |
| In the Matter of Joseph Sessa, Appellant, v Board of Assessors ofthe Town of North Elba, Respondent. |
—[*1] Hacker & Murphy, L.L.P., Latham (Patrick L. Seely Jr. of counsel), for respondent.
Spain, J. Appeal from an order of the Supreme Court (Dawson, J.), entered June 15, 2006 inEssex County, which, in a proceeding pursuant to RPTL article 7, granted respondent's motion todismiss the petition.
In this RPTL article 7 proceeding, petitioner challenges the 2004 tax assessment of realproperty located at 101 Mirror Lake Drive in the Village of Lake Placid, Town of North Elba,Essex County. Supreme Court granted respondent's motion to dismiss the proceeding for lack ofpersonal jurisdiction. On petitioner's appeal, we now reverse.
Petitioner filed the petition challenging the 2004 assessment in July 2004 and mailed threecopies of the notice of petition and petition to respondent. Respondent did not answer, allowingall allegations to be deemed denied pursuant to RPTL 712 (1). Petitioner filed a note of issue inMarch 2005 and the parties had a pretrial conference in April 2005. In July 2005, petitioner filedanother petition challenging his 2005 tax assessment. Again, as authorized by law, respondentdid not answer. Thereafter, the parties exchanged preliminary appraisals in the hope ofsettlement. Petitioner filed a note of issue with respect to the 2005 petition on September 21,2005. A pretrial conference was held in October 2005. By letter dated January 6, 2006,respondent announced substitution of counsel and asserted statutory denial of both petitionspursuant to RPTL 712 (1). On April 10, 2006, 19 months following the filing of the [*2]2004 petition, respondent successfully moved for dismissal of bothpetitions based upon improper service of process.[FN1]
We conclude that the proceeding should not have been dismissed despite petitioner's failureto effect proper service.[FN2] "[S]ervice of process can be waived by respondent simply by appearing in the proceeding andsubmitting to the court's jurisdiction" (Matter of Fry v Village of Tarrytown, 89 NY2d714, 720 n 2 [1997]). A formal appearance is effected "by serving an answer or a notice ofappearance, or by making a motion which has the effect of extending the time to answer" (CPLR320 [a]), and a party can also appear informally by substantially participating in the litigation(see Parrotta v Wolgin, 245 AD2d 872, 873 [1997]).
An appearance will operate to waive objections to the court's personal jurisdiction "unless anobjection to jurisdiction under [CPLR 3211 (a) (8)] is asserted by motion or in the answer asprovided in rule 3211" (CPLR 320 [b]; see CPLR 3211 [e]; Matter of Abramov vBoard of Assessors, Town of Hurley, 257 AD2d 958, 960 [1999], lv denied 93 NY2d813 [1999]; see also Matter of Nicola v Board of Assessors of Town of N. Elba, 46AD3d 1161 [2007] [decided herewith]). In the context of this RPTL article 7 tax proceeding,however, "[a] motion to dismiss the petition shall not be denied merely on the ground that ananswer has been deemed made" (RPTL 712 [1]). Thus, respondent "[was] not required to moveto dismiss prior to the expiration of the time in which to answer" (Matter of Abramov vBoard of Assessors, Town of Hurley, 257 AD2d at 960; see Matter of Rosen v Assessorof City of Troy, 261 AD2d 9, 11 [1999]). The holding in Matter of Abramov v Board ofAssessors, Town of Hurley (supra) was qualified by the provision that prejudice to apetitioner as a result of a respondent's delay could be a ground for denying a motion to dismissbrought after the statutory time to answer had expired (see id.). It has also been held thatrespondents in RPTL article 7 tax proceedings who do not answer—and, thus, have notformally raised any objections—are not bound by the rule that requires a party objecting topersonal jurisdiction to move for dismissal on that ground within 60 days of raising an objectionin the answer (see Matter of Village Sq. of Penna v Semon, 290 AD2d 184, 186-187[2002], lv dismissed 98 NY2d 647 [2002]).
Thus, respondent's motion to dismiss, though raised well after the time an objection topersonal jurisdiction would be required outside of the RPTL article 7 context, cannot be deniedsimply on that basis, absent a finding of prejudice. We are confronted, therefore, with thequestions of whether respondent took any actions which amounted to a voluntary submission to[*3]Supreme Court's jurisdiction before it moved to dismiss,thereby waiving the defense of personal jurisdiction, or whether petitioner had been prejudicedby respondent's lengthy delay in moving to dismiss the proceeding.
In Parrotta v Wolgin (245 AD2d at 873), a claims representative "evidently acting on[the] defendants' behalf, contacted [the] plaintiff's counsel on several occasions, requestingextensions of time to answer (which were granted) and seeking discovery of medical reports,names of witnesses and the date of the incident" (id.). Under those circumstances, weagreed with Supreme Court that "[t]his conduct . . . constituted an 'informalappearance' sufficient to preclude entry of a default judgment against [the] defendants"(id.). We nevertheless granted the defendants' motion to dismiss, holding that because theinformal appearance occurred before the defendants' time to answer had expired, it did notdeprive them of the right to object to jurisdiction.
Here, we hold that respondent engaged in significant activity after its statutory time to answerhad expired, amounting to an informal appearance. By letter to Supreme Court dated January 16,2006,[FN3] after the parties had exchanged preliminary appraisals, respondent specifically sought an orderfrom the court establishing a date for final appraisals to be filed with the court. On January 6,2006, new counsel for respondent advised the court that they had been retained to appear onbehalf of respondent.
Although no clear rule exists as to when a letter will constitute an appearance by a party, onefactor to consider is whether the letter "discusses the merits of the action and which asks [for] orconsents to action by the court" (Matter of Katz, 81 AD2d 145, 147 [1981], affd forreasons stated below 55 NY2d 904 [1982]). Where a letter reflects that "respondent clearlyindicated a desire to participate in the proceedings without jurisdictional objection," it has beenheld that a letter, even standing alone, can constitute an appearance (Matter of Hauger vHauger, 275 AD2d 953, 954 [2000]; see Cohen v Ryan, 34 AD2d 789, 790 [1970][letter from a defendant to the plaintiff requesting an extension of time held to constitute anappearance sufficient to avoid a default judgment]; but see Matter of Kimball, 155 NY62, 69-71 [1898], writ of error dismissed 174 US 158 [1899] [substantive letter deemednot an appearance]; Agway, Inc.—Dansville Store v Curtis, 195 AD2d 1077, 1077[1993] [letters requesting itemized statement of account not an appearance]).
On the record before us, we conclude that respondent's participation in pretrial conferencesand settlement discussions during this proceeding for well over a year beyond the time an answerwould have been required and, in particular, respondent's letter requesting formal action bySupreme Court, amounts to sufficient activity to warrant a finding that respondent hadacknowledged the jurisdiction of the court without preserving its objection based on improperservice (see Page v Marusich, 30AD3d 871, 873 [2006]; Matter of Home Mut. Ins. Co. v Springer, 130 AD2d 493,493 [1987]; Matter of Rizika v Board of Assessors of Vil. of Herkimer, 62 Misc 2d 774,776 [1970]; see also Matter of Fry v Village of Tarrytown, 89 NY2d at 720 n 2).Significantly, respondent waited 19 months prior to objecting to the court's jurisdiction (seeMatter of North Country Hous. v Board of Assessment Review for Vil. of Potsdam, 298AD2d [*4]667, 669 [2002]). Moreover, petitioner was prejudicedby respondent's lengthy delay in that respondent's apparent acquiescence to the servicemethodology utilized by petitioner here failed to alert petitioner to take different steps to effectservice in the 2005 proceeding.
Mercure, J.P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the order is reversed,on the law and the facts, without costs, and motion denied.
Footnote 1: Petitioner has not appealed fromthe order dismissing the 2005 petition.
Footnote 2: As petitioner failed to effectpersonal service pursuant to either RPTL 708, generally, or CPLR 312-a, specifically, we declineto address the issue of service by mail under RPTL 708 as decided in Matter of Wyeth Ayerst Pharms., Inc. vAssessor of Town of Champlain (24 AD3d 849 [2005]; cf. Aymes v City of New York, 27AD3d 394, 396 [2006]). We save that issue for another day.
Footnote 3: Although the letter is actuallydated January 16, 2005, it is clear from its content that it was written on January 16, 2006.