| Matter of Cento Props. Co. v Assessor |
| 2010 NY Slip Op 02556 [71 AD3d 1015] |
| March 23, 2010 |
| Appellate Division, Second Department |
| In the Matter of Cento Properties Co.,Respondent, v Assessor et al., Appellants. |
—[*1] Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Andrew J. Turro of counsel), forrespondent.
In related proceedings pursuant to RPTL article 7 to review the tax assessments of thepetitioner's real property for tax years 1996/1997 through 2008/2009 the appeal, as limited by theappellants' brief, is from so much of an order of the Supreme Court, Nassau County (Bucaria, J.),entered July 23, 2008, as, upon granting that branch of the petitioner's motion which was forleave to reargue those branches of its prior motion which were to restore the proceedingreferable to tax year 1996/1997 to the trial calendar and, in effect, to restore the otherproceedings for subsequent tax years to active status, which had been determined in an order ofthe same court (DeMaro, J.), dated December 20, 2007, in effect, vacated the order datedDecember 20, 2007, and thereupon granted those branches of the petitioner's motion which wereto restore.
Ordered that the order entered July 23, 2008, is affirmed insofar as appealed from, withcosts.
In or around 1996, the petitioner Cento Properties Co. (hereinafter Cento) commenced aproceeding in the Supreme Court, Nassau County, against the Assessor, Board of Assessors, andthe Assessment Review Commission of the County of Nassau (hereinafter collectively theCounty) pursuant to RPTL article 7 to review the tax assessment for tax year 1996/1997 oncertain real property it owns located in Garden City (hereinafter the original proceeding).Subsequently, Cento commenced additional proceedings in the Supreme Court against theCounty pursuant to RPTL article 7 to review the tax assessments on the subject property for thetax years 1997/1998 through 2008/2009 (hereinafter the subsequent related proceedings).
In the interim, in or around September 1999, Cento filed a note of issue with respect to theoriginal proceeding. Subsequently, on September 25, 2001, the original proceeding appeared onthe trial calendar. On that date, pursuant to certain procedures that former Justice Leo F.McGinity had implemented years earlier in an attempt to reduce the backlog of tax certiorariproceedings on the trial calendar, the original proceeding was removed from the trial calendar sothe County could obtain a preliminary appraisal, after which the parties could try to settle thematter. Thereafter, the subsequent related proceedings were marked "inactive pre-note."[*2]
Ultimately, on or about November 21, 2007, with theparties unable to reach a settlement, Cento moved to restore the original proceeding to the trialcalendar and, in effect, to restore the subsequent related proceedings to active status. The Countyopposed restoration of both the original proceeding and the subsequent related proceedings. TheSupreme Court denied the motion, after which Cento moved to reargue. Upon granting leave toreargue, the Supreme Court granted Cento's motion to restore, holding that (1) restoration of theoriginal proceeding to the trial calendar is appropriate since Cento satisfied the four-prong testfor restoring, to the trial calendar, a matter marked "off" the trial calendar pursuant to CPLR3404 for more than one year, and (2) restoration of the subsequent related proceedings to activestatus is automatic because the County had failed to serve a 90-day notice pursuant to CPLR3216. We affirm, but for different reasons.
A review of the information on the New York State Unified Court System E-Courts publicwebsite, of which we take judicial notice (see Kingsbrook Jewish Med. Ctr. v Allstate Ins.Co., 61 AD3d 13, 20 [2009]), reveals that, when the original proceeding appeared on thetrial calendar in 2001, the court marked the case "settled before trial." Accordingly, the originalproceeding was not marked "off" or stricken from the calendar pursuant to CPLR 3404 (seeLong-Waithe v Kings Apparel Inc., 10 AD3d 413, 414 [2004]; Baez v Kayantas,298 AD2d 416 [2002]; Basetti v Nour, 287 AD2d 126 [2001]). For the reasons set forthin our determination on a companion appeal (see Matter of Transtechnology Corp. vAssessor, 71 AD3d 1034 [2010] [decided herewith]), the Supreme Court correctlyrecognized that it misapprehended the law relevant to the instant dispute and, thus, correctlygranted that branch of the petitioner's motion which was for leave to reargue and thereupongranted those branches of Cento's motion which were to restore the original proceeding to thetrial calendar and, in effect, to restore the subsequent related proceedings to active status. Dillon,J.P., Florio, Miller and Austin, JJ., concur.