| Matter of Level 3 Communications, LLC v EssexCounty |
| 2015 NY Slip Op 04899 [129 AD3d 1255] |
| June 11, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Level 3 Communications, LLC,Appellant, v Essex County, Respondent, et al., Respondents. |
Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York City (John G.Nicolich of counsel), for appellant.
Daniel T. Manning, County Attorney, Elizabethtown, for Essex County,respondent.
Clark, J. Appeal from a judgment of the Supreme Court (Buchanan, J.), entered June23, 2014 in Essex County, which, among other things, partially dismissed petitioner'sapplication, in a combined proceeding pursuant to CPLR article 78 and action fordeclaratory judgment, to, among other things, compel a refund of certain real propertytaxes paid by petitioner.
In June 2013, petitioner, a telecommunications company that owns fiber optic cableinstallations located within the jurisdiction of Essex County, filed applications pursuantto RPTL 556-b seeking, among other things, refunds of real property taxes paid on saidinstallations located upon private rights-of-way for the years 2010, 2011 and 2012.Petitioner claimed that the taxes were wrongfully assessed because the installations arenot taxable as real property (seeMatter of RCN N.Y. Communications, LLC v Tax Commn. of the City of N.Y., 95AD3d 456, 457 [2012], lv denied 20 NY3d 855 [2012]). After petitioner'sapplications were not granted, it commenced this combined CPLR article 78 proceedingand action for declaratory judgment seeking, among other things, refunds of real propertytaxes. As relevant to this appeal, Supreme Court held that petitioner was precluded fromrecovering the refunds that it sought on the grounds that recovery was time-barred andpetitioner had paid the taxes voluntarily. Petitioner appeals, and we affirm.
Initially, we note that, unless subject matter jurisdiction is implicated, a court shouldnot [*2]raise an issue sua sponte when a party isprejudiced by its inability to respond (see Matter of Dental Socy. of State of N.Y. vCarey, 92 AD2d 263, 264 [1983], affd 61 NY2d 330 [1984]). Here, becauserespondent Essex County failed to raise the statute of limitations as an affirmativedefense in a pre-answer motion to dismiss or in its answer (see CPLR 3211 [a][5]; [e]; 7804 [f]), it was improper for Supreme Court to raise it sua sponte (seeCPLR 3018 [b]; ProgressiveNortheastern Ins. Co. v North State Autobahn, Inc., 71 AD3d 657, 658 [2010]).Inasmuch as petitioner was prejudiced by its inability to respond, we cannot sustainSupreme Court's partial denial of the petition on such ground (see Town of Delhi v Telian,119 AD3d 1049, 1050 [2014]; Matter of Isabella v Hotaling, 207 AD2d 648,649 [1994], lv denied 84 NY2d 801 [1994]).
Nevertheless, we find no reason to disturb Supreme Court's partial denial of thepetition on the ground that petitioner failed to demonstrate that it paid the taxesinvoluntarily. To recover payments made under a mistake of law, as in the present case(see Matter of RCN N.Y. Communications, LLC v Tax Commn. of the City ofN.Y., 95 AD3d at 457), a taxpayer is required to show that the payments were madeinvoluntarily (see City of Rochester v Chiarella, 58 NY2d 316, 323 [1983],cert denied sub nom. Quality Packaging Supply Corp. v City of Rochester, 464US 828 [1983]; CommunityHealth Plan v Burckard, 3 AD3d 724, 725 [2004]; Bias Limud Torah vCounty of Sullivan, 290 AD2d 856, 857-858 [2002], lv denied 98 NY2d 610[2002], amended 305 AD2d 972 [2003]).[FN1] This requirement ensures thatgovernmental entities have notice that they may need to provide for tax refunds (seeVideo Aid Corp. v Town of Wallkill, 85 NY2d 663, 667 [1995]; Matter ofTennessee Gas Pipeline Co. v Town of Chatham Bd. of Assessors, 239 AD2d 831,833 [1997]). Here, petitioner fully paid all of the relevant taxes and offered no proof thatit did so under protest or that such payments were otherwise involuntary (see Matter of Walton v New YorkState Dept. of Correctional Servs., 57 AD3d 1180, 1183-1184 [2008],affd 13 NY3d 475 [2009]; compare Bias Limud Torah v County ofSullivan, 290 AD2d at 858). Indeed, petitioner did nothing to indicate that itspayments were involuntary until nearly 18 months after the final contested tax bill waspaid, when petitioner submitted its RPTL 556-b correction applications.[FN2] Accordingly, SupremeCourt's partial denial of the petition is affirmed.
Petitioner's remaining arguments have been considered and we find themunavailing.
Lahtinen, J.P., Rose and Devine, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1:We note that petitioner'sargument that RPTL 556 is a "statutory procedure authorizing recovery" to which thevoluntary payment doctrine does not apply is unavailing insofar as RPTL 556 does notprovide an affirmative right to recover taxes without protest (Mercury Mach.Importing Corp. v City of New York, 3 NY2d 418, 430 [1957]; see e.g. City ofRochester v Chiarella, 65 NY2d 92, 98 [1985]; City of Rochester v Chiarella,98 AD2d 8, 9, 12 [1983], affd 63 NY2d 857 [1984]).
Footnote 2:It should be noted thatpetitioner incorrectly used RPTL 556-b to apply for the relief that it seeks. Specifically,petitioner alleges an unlawful entry as defined by RPTL 550 (7) (c), which is not a typeof unlawful entry that can be redressed by an RPTL 556-b application (see RPTL550 [7]; 556-b [1]). The Court, nonetheless, would come to the same conclusion even ifpetitioner had filed the proper form.