| Matter of Transtechnology Corp. v Assessor |
| 2010 NY Slip Op 02570 [71 AD3d 1034] |
| March 23, 2010 |
| Appellate Division, Second Department |
| In the Matter of Transtechnology Corp.,Respondent, v Assessor et al., Appellants. |
—[*1] Koeppel Martone & Leistman, LLP, Mineola, N.Y. (Donald F. Leistman and Carol Rizzo ofcounsel), for respondent.
In related proceedings pursuant to RPTL article 7 to review the tax assessments of thepetitioner's real property for tax years 1996/1997 through 2007/2008, the appeal, as limited bythe appellants' brief, is from so much of an order of the Supreme Court, Nassau County (Bucaria,J.), entered July 9, 2008, as granted those branches of the petitioner's motion which were torestore the proceeding referable to tax year 1996/1997 to the trial calendar and, in effect, torestore the other proceedings for subsequent tax years to active status.
Ordered that the order is affirmed insofar as appealed from, with costs.
In April 1996 the petitioner Transtechnology Corp. (hereinafter Transtechnology)commenced a proceeding in the Supreme Court, Nassau County, against the Assessor, Board ofAssessors, and the Assessment Review Commission of the County of Nassau (hereinaftercollectively the County) pursuant to RPTL article 7 to review the tax assessment for tax year1996/1997 on certain real property it owns in Glen Head (hereinafter the original proceeding).Subsequently, Transtechnology commenced additional proceedings in the Supreme Court againstthe County pursuant to RPTL article 7 to review the tax assessments on the subject property forthe tax years 1997/1998 through 2007/2008 (hereinafter the subsequent related proceedings).
In the interim, in or around October 1997, Transtechnology filed a note of issue with respectto the original proceeding. Subsequently, on August 25, 1999, the original proceeding appearedon the 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 sothat the County could obtain a preliminary appraisal, after which the parties could try to settlethe matter. Thereafter, the subsequent related proceedings were marked "inactive pre-note."
Ultimately, on or about April 3, 2008, with the parties unable to reach a settlement,Transtechnology moved, inter alia, to restore the original proceeding to the trial calendar and, ineffect, to restore the subsequent related proceedings to active status. The County opposed therestoration of both [*2]the original proceeding and thesubsequent related proceedings. The Supreme Court granted Transtechnology's motion, holdingthat (1) restoration of the original proceeding to the trial calendar was appropriate sinceTranstechnology satisfied the four-prong test for restoring, to the trial calendar, a matter marked"off" the trial calendar pursuant to CPLR 3404 for more than one year, and (2) restoration of thesubsequent related proceedings to active status was automatic since the County failed to serve a90-day notice pursuant to CPLR 3216. We affirm, but for different reasons.
With respect to that branch of Transtechnology's motion which was to restore the originalproceeding to the trial calendar, pursuant to CPLR 3404, "[a] case in the supreme court. . . marked 'off' or struck from the calendar or unanswered on a clerk's calendarcall, and not restored within one year thereafter, shall be deemed abandoned and shall bedismissed without costs for neglect to prosecute" (CPLR 3404). Thus, "[a] plaintiff seeking torestore a case to the trial calendar after it has been dismissed pursuant to CPLR 3404must demonstrate a meritorious cause of action, a reasonable excuse for the delay inprosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to thedefendant" (Krichmar v Queens Med. Imaging, P.C., 26 AD3d 417, 418 [2006][emphasis added]).
Here, the crux of the appeal insofar as it relates to the original proceeding is whether theoriginal proceeding was, in fact, marked "off" or stricken from the trial calendar pursuant toCPLR 3404, thus requiring Transtechnology to submit proof necessary to vacate a default inorder to have the original proceeding restored to the trial calendar. Notably, both before theSupreme Court and in their respective appellate briefs, the parties, in describing the removal ofthe original proceeding from the trial calendar, loosely and interchangeably refer to the originalproceeding as having been marked "off" or marked "off/settled." In Basetti v Nour (287AD2d 126 [2001]) this Court held that, in order to minimize confusion as to the appropriatestandard for resolution of a motion to restore a case to the trial calendar, the focus should be onthe specific action taken by the trial court when the case appeared on the calendar, and not on thecircumstances surrounding the removal (Basetti v Nour, 287 AD2d at 133). Thus, theparties' focus on the circumstances surrounding the removal of the original proceeding from thetrial calendar is misplaced. Here, a review of the information on the New York State UnifiedCourt System E-Courts public Web site, of which we take judicial notice (see KingsbrookJewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), reveals that when the originalproceeding appeared on the trial calendar in 1999, the Supreme Court marked the case"adjourned." Accordingly, the original proceeding was not marked "off" or stricken from the trialcalendar pursuant to CPLR 3404 (see Basetti v Nour, 287 AD2d at 134; see generallyBarbu v Savescu, 49 AD3d 678 [2008]). Thus, contrary to the County's claim, the originalproceeding was not subject to automatic dismissal pursuant to that statute, and Transtechnologywas not required to submit proof necessary to vacate a default in order to have the originalproceeding restored to the trial calendar (see Basetti v Nour, 287 AD2d at 134; seealso Krichmar v Queens Med. Imaging, P.C., 26 AD3d at 419). Rather, restoration of theoriginal proceeding was automatic upon Transtechnology's motion to restore (see Basetti vNour, 287 AD2d at 134).
Although the County referred the Supreme Court to an unwritten understanding that apetitioner would move to restore a tax certiorari proceeding removed from the trial calendarpursuant to Justice McGinity's procedures within three years of the removal, there is nothing inthe record delineating the precise details of any such agreement. Certainly, there is nothing in therecord reflecting that if a petitioner did not seek to restore its tax certiorari proceeding withinthree years, that petitioner either would be barred from seeking to restore the proceeding to thetrial calendar, or would be required to submit proof necessary to vacate a default in order to havethe proceeding restored to the trial calendar.
With respect to that branch of Transtechnology's motion which was, in effect, to restore thesubsequent related proceedings to active status, we note that each of those proceedings are inpre-note of issue status. Thus, contrary to the County's contention, CPLR 3404 is inapplicable tothe subsequent related proceedings as well (see Andre v Bonetto Realty Corp., 32 AD3d973, 974 [2006]), since the subsequent related proceedings could not possibly have been marked"off" or stricken from the trial calendar. Accordingly, the subsequent related proceedings werenot subject to automatic dismissal pursuant to that statute, and Transtechnology was not requiredto submit proof necessary to vacate a default in order to have the subsequent related proceedingsrestored to active status (id. at 975).[*3]
As the Supreme Court correctly noted, want ofprosecution in a pre-note of issue case generally is governed by CPLR 3216, which requiresservice of a 90-day notice demanding the filing of a note of issue before a court may dismisssuch a case on that ground (see CPLR 3216). Accordingly, in most situations wherethere was no service of a 90-day notice pursuant to CPLR 3216, restoration to active status of apre-note of issue matter marked "inactive" is automatic (see Andre v Bonetto RealtyCorp., 32 AD3d at 975). Nonetheless, consideration of the County's failure to serve a 90-daynotice in accordance with CPLR 3216 is not necessary to the determination of that branch ofTranstechnology's motion which was, in effect, to restore the subsequent related proceedings toactive status since want of prosecution in a pre-note of issue tax certiorari proceeding isgoverned by RPTL 718, which does not require service of such a 90-day notice before a case isdeemed to have been abandoned and dismissed (see RPTL 718).
Nonetheless, despite its incorrect reliance upon CPLR 3216, the Supreme Court properlygranted that branch of Transtechnology's motion which was, in effect, to restore the subsequentrelated proceedings to active status. Although RPTL 718 provides that a tax certiorariproceeding shall be deemed to have been abandoned, and shall be dismissed unless a note ofissue is filed and the proceeding is placed on the court calendar within four years from the lastdate provided by law for the commencement of the proceeding, RPTL 718 also permits theparties to the proceeding to extend the time for filing a note of issue by stipulation (seeRPTL 718 [1]; see also Matter of Waldbaum's #122 v Board of Assessors of City of MountVernon, 58 NY2d 818, 819 [1983]). Here, Transtechnology and the County entered into astipulation pursuant to which, inter alia, Transtechnology obligated itself to provide the Countywith an additional proposed stipulation consolidating all pending tax certiorari proceedingsinvolving the same real property within 30 days after the original proceeding is placed on thetrial calendar. The stipulation further provides that Transtechnology shall not be required to fileany additional notes of issue for the subsequent related proceedings until the time it is requiredto furnish the proposed stipulation of consolidation, provided that such notes of issue arerequired for the issuance of an order of consolidation. By virtue of the fact that the originalproceeding was removed from the trial calendar, Transtechnology was, at the time it moved torestore, not yet obligated to file a note of issue for each of the subsequent related proceedings.Accordingly, restoration of the subsequent related proceedings to active status was automaticupon Transtechnology's motion to restore (see generally 123X Corp. v McKenzie, 7AD3d 769, 770 [2004]).
Accordingly, the Supreme Court properly granted those branches of Transtechnology'smotion which were to restore the original proceeding to the trial calendar and, in effect, torestore the subsequent related proceedings to active status. Dillon, J.P., Florio, Miller andAustin, JJ., concur. [Prior Case History: 21 Misc 3d 215.]