| Matter of Plaro Estates, Inc. v Assessor |
| 2012 NY Slip Op 08535 [101 AD3d 886] |
| December 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of Plaro Estates, Inc., Appellant, v Assessoret al., Respondents. |
—[*1] Joseph J. Savino, White Plains, N.Y. (Daniel S. Szalkiewicz of counsel), forrespondents.
In related tax certiorari proceedings pursuant to Real Property Tax Law article 7 for the taxyears 2005 through 2010, the petitioner appeals, as limited by its brief, from so much of an orderof the Supreme Court, Rockland County (Garvey, J.), dated April 15, 2011, as granted thosebranches of the respondents' motion which were to vacate the notes of issue and to dismiss thepetitions for review of the 2005 and 2006 tax assessments and to dismiss the petitions for reviewof the 2009 and 2010 tax assessments, and denied that branch of its cross motion which was forleave to correct the tax map identification numbers in the petitions for review of the 2009 and2010 tax assessments.
Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion,(1) by deleting the provision thereof granting that branch of the respondents' motion which wasto dismiss the petitions for review of the 2009 and 2010 tax assessments, and substitutingtherefor a provision denying that branch of the respondents' motion, and (2) by deleting theprovision thereof denying that branch of the petitioner's cross motion which was for leave tocorrect the tax map identification numbers in the petitions for review of the 2009 and 2010 taxassessments, and substituting therefor a provision granting that branch of the petitioner's crossmotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The petitioner filed petitions for review of tax assessments for, inter alia, the 2005, 2006,2009, and 2010 tax years. The petitioner filed a note of issue as to the 2005 petition within fouryears of the commencement of the 2005 proceeding, but failed to serve a statement of incomeand expenses for the 2005 tax year. It also filed an untimely note of issue as to the 2006proceeding. In addition, the 2009 and 2010 petitions listed the incorrect tax map identificationnumbers. The respondents moved, inter alia, to vacate the notes of issue and to dismiss each ofthose petitions, asserting, inter alia, that the defect as to the tax map identification number wasjurisdictional and could not be corrected. The Supreme Court agreed and, by order dated April15, 2011, inter alia, granted those branches of the respondents' motion which were to vacate thenotes of issue and to dismiss the petitions for review of the 2005 and 2006 tax assessments and todismiss the petitions [*2]for review of the 2009 and 2010 taxassessments, and denied that branch of the petitioner's cross motion which was for leave tocorrect the tax map identification numbers in the petitions for review of the 2009 and 2010 taxassessments. The petitioner appeals from those portions of the order.
It is undisputed that, as to the 2005 petition, the petitioner failed to comply with themandatory language of 22 NYCRR 202.59 (b) and (d) (1) by failing to timely serve therespondents with the income and expense statements before filing the note of issue (see Matter of Eastgate Corporate Park, LLCv Assessor, Bd. of Assessment Review of Town of Goshen, 54 AD3d 1036, 1036-1037[2008]). In addition, the petitioner did not make an attempt to correct the defect within thestrictly enforced four-year period set forth in RPTL 718 (2) (d) (see id.; see generallyMatter of Sullivan LaFarge v Town of Mamakating, 94 NY2d 802 [1999]; Matter ofWaldbaum's #122 v Board of Assessors of City of Mount Vernon, 58 NY2d 818 [1983]).Moreover, while we have recognized that failure to serve income and expense statements maynot be a fatal defect where the property is not income producing (see Matter of Al Turi Landfill, Inc. v Townof Goshen, 93 AD3d 786, 789-790 [2012]), the petitioner did not prove that its propertywas not income producing. Thus, the Supreme Court correctly granted that branch of therespondents' motion which was to vacate the note of issue and to dismiss the petition for reviewof the 2005 tax assessment.
With respect to the 2006 petition, the petitioner acknowledges that the note of issue wasuntimely filed, but claims that the delay should have been excused because its counsel wassuffering from a disabling illness that kept him from filing the note of issue in a timely fashion.The Supreme Court correctly determined that, because the petitioner failed to make a showing ofgood cause for the failure to file the note of issue within the mandatory four-year period set forthin RPTL 718 (2) (d), the note of issue should be vacated and the proceeding dismissed (seeMatter of Sullivan LaFarge v Town of Mamakating, 94 NY2d at 803-804). We disagree withthe petitioner's contention that the 2006 proceeding was automatically stayed by operation ofCPLR 321 (c) (see Moray v Koven &Krause, Esqs., 15 NY3d 384, 389 [2010]). The claimed disability of the petitioner'scounsel is unsupported by any medical proof and, in the absence of the requisite proof of thedisability, we find that CPLR 321 (c) is not applicable to this case (see Winney v County ofSaratoga, 252 AD2d 882, 883 [1998]). Thus, the Supreme Court correctly granted thatbranch of the respondents' motion which was to vacate the note of issue and to dismiss thepetition for review of the 2006 tax assessment.
However, the Supreme Court erred in granting that branch of the respondents' motion whichwas to dismiss the petitions for review of the 2009 and 2010 tax assessments and in denying thatbranch of the petitioner's cross motion which was to correct the tax map identification numbersin the 2009 and 2010 petitions for review. A petition to review a tax assessment may be amendedif the change corrects a defect in form rather than adding a matter of substance because "thetaxpayer's right to review should not be defeated by technicalities" (Matter of Sterling Estatesv Board of Assessors of County of Nassau, 66 NY2d 122, 127 [1985]). In addition, the TaxLaw relating to a petition to review a tax assessment is " 'remedial in character and should beliberally construed to the end that the taxpayer's right to have his assessment reviewed should notbe defeated by a technicality' " (Matter of Great E. Mall v Condon, 36 NY2d 544, 548[1975], quoting People ex rel. New York City Omnibus Corp. v Miller, 282 NY 5, 9[1939]). In reviewing the pleading requirements in these proceedings, the Court of Appeals hasoutlined a two-pronged inquiry: (1) whether the respondent received adequate notice of thecommencement of the proceedings, and (2) whether any substantial right of the entity would beprejudiced by disregarding the defect or irregularity (see Matter of Great E. Mall vCondon, 36 NY2d at 548). The burden of proving prejudice is upon the respondent (seeid. at 549).
Here, the error was technical and not jurisdictional. The respondents received adequatenotice of the commencement of the proceedings and failed to prove that a substantial right wouldbe prejudiced by disregarding the defect (see id. at 548-549; Matter of Astoria Fed.Sav. & Loan Assn. v Board of Assessors, 212 AD2d 600, 601 [1995]). Accordingly, theSupreme Court should have denied that branch of the respondents' motion which was to dismissthe petitions for review of the 2009 and 2010 tax assessments, and should have granted thatbranch of the petitioner's cross motion which was to correct the tax map identification numbersin the 2009 and 2010 petitions for [*3]review. Rivera, J.P.,Chambers, Hall and Lott, JJ., concur.