Matter of Landesman v Whitton

[*1] Matter of Landesman v Whitton 2006 NY Slip Op 51847(U) [13 Misc 3d 1216(A)] Decided on October 2, 2006 Supreme Court, Dutchess County Dickerson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 2, 2006
Supreme Court, Dutchess County

In the Matter of the Application of Arthur L. Landesman, Trustee by Corbally, Gartland & Rappleyea, Esq., as Agents, Petitioner,

against

Deborah A. Whitton, Assessor, City of Poughkeepsie, Dutchess County, New York and City of Poughkeepsie School District, Respondents.



3393/1999



David D. Hagstrom, Esq.

Van De Water & Van De Water

Attorneys for Respondents

40 Garden Street

P.O.B. 112

Poughkeepsie, NY 12602

J. Joseph McGowan, Esq.

McCabe & Mack, LLP

Attorneys for Petitioner

63 Washington Street

P.O.B. 509

Poughkeepsie, NY 12602-0509

Thomas A. Dickerson, J.

In this latest exploration [FN1] of the requirements of proper service in tax certiorari proceedings, this Court is called upon by the Respondent, the City of Poughkeepsie [ " the City " ] to issue an Order pursuant to Real Property Tax Law [ " R.P.T.L. " ] §§ 708(3) and 718 dismissing the Petitioner's " tax certiorari petitions filed for 1999, 2000, 2001, 2002, 2003 and 2004 in that the Petitioner failed to timely file Trial Notes of Issue in regard to the 2000 and 2001 petitions, the Petitioner failed to serve the Superintendent of Schools of the Poughkeepsie City School District in 1999, 2000, 2001, 2002, 2003 and 2004 and the Petitioner failed to timely file proof of service of the Petition on the Superintendent of Schools in 2001 "[FN2].

After careful consideration of the Respondent's Notice of Motion To Dismiss together with the supporting Affidavit [FN3] and Reply Affidavit [FN4] of David D. Hagstrom and Memorandum of Law [FN5] and Reply Memorandum of Law [FN6] and the Petitioner's opposition papers [*2]including the Affirmation [FN7] of J. Joseph McGowan and Memorandum of Law [FN8], the Court hereby grants the Respondent's Motion and dismisses the Petitioner's 1999, 2000, 2001, 2002, 2003 and 2004 Petitions.

FACTUAL BACKGROUND

The Property & Its Assessed Values

The Petitioner is the owner of property located at 183 Smith Street, City of Poughkeepsie, New York with tax map number of 6162-73-557223 [ " the subject property " ] with the following assessed values [FN9] for each of the tax years in dispute, 1999 [ $118,900.00 ], 2000

[ $118,900.00 ], 2001 [ $118,900.00 ], 2002 [ $118,900.00 ], 2003

[ $114,900.00 ] and 2004 [ $104,600.00 ]. The Petitioner has challenged each of these assessments in Notices and Verified Petitions dated July 28, 1999 [ " 1999 Petition " ], July 20, 2000 [ " 2000 Petition " ], July 25, 2001 [ " 2001 Petition " ], July 25, 2002 [ " 2002 Petition " ], July 29, 2003 [ " 2003 Petition " ] and July 28, 2004 [ " 2004

Petition " ][FN10].

Service & Filing Issues Regarding Each Petition

Each of the Petitions must be dismissed because of Petitioner's failure to comply with the filing requirements of R.P.T.L. § 718(1)

[ 2000 and 2001 Petitions ] [ See e.g., Rose Mount Vernon Corp. v. Assessor of the City of Mount Vernon, 1 Misc 3d 906 ( West. Sup. 2003 )( failure to file Notes of Issue within four years of service requires dismissal of Petitions ), aff'd 15 AD3d 585, 791 NYS2d 572 ( 2d Dept. 2005 )] and service requirements of R.P.T.L. § 708(3) [ 1999, 2000, 2001, 2002, 2003 and 2004 Petitions ][ See e.g., Orange And Rockland Utilities, Inc., 11 Misc 3d 1051 ( [*3]Rockland Sup. 2006 )( petitions dismissed for failure to serve Superintendent of Schools; jurisdictional defect ); Majaars Realty Assoc. v. Town of Poughkeepsie, 10 Misc 3d 1061 ( Dutchess Sup. 2005 )( petitions dismissed for failure to serve Superintendent of Schools; jurisdictional defect )]. However, the Petitioner's failure to timely file [ within 10 days ] the proof of service of the mailing of the 2001 Petition as required by R.P.T.L. § 708(3) is excusable in the absence of proof of prejudice [ See e.g., Orange And Rockland Utilities, Inc., 11 Misc 3d 1051 ( Rockland Sup. 2006 )( late filing of proof of service ministerial act and excusable if no prejudice shown )].

The 1999 Petition

The 1999 Petition is addressed to, among others, the " City of Poughkeepsie School District, Business Office "[FN11]. The affidavit of service by mail on July 30, 1999 is to the " City of Poughkeepsie School District, Administrative Office "[FN12]. Although the 1999 Petition is addressed to the School District's Administrative Office [FN13] it is not addressed to the Superintendent of Schools of the City of Poughkeepsie School District and as such is jurisdictionally defective. No credible evidence has been introduced by Petitioner [FN14] to demonstrate that the Superintendent [*4]of Schools or an authorized agent [ See e.g., Matter of 275 N. Middletown Rd. LLP v. Kenney, 10 Misc 3d 1067 ( Rockland Sup. 2005 )( " June Iamundo, the Secretary to the Superintendent of Schools...signed the Return Receipt card on behalf of the Superintendent of Schools, thereby resulting in service of the Petition and Notice of Petition on the Superintendent of Schools pursuant to R.P.T.L. § 708(3) " )] was served with the 1999 Petition. In addition, the requirements of C.P.L.R. § 3211(e)[FN15] to file a timely objection do not apply [FN16] in tax certiorari proceedings [ See e.g., Majaars Realty Assoc. v. Town of Poughkeepsie, 10 Misc 3d 1061(A) ( Dutchess Sup. 2005 )( " As to the issue of the timeliness of Respondent's Motion to Dismiss, it is clear that the courts have not required a municipality in a tax certiorari proceeding to make a motion to dismiss within the same CPLR § 3211(e) 60-day time constraint as in other types of actions [ See e.g., Village Square of Penna, Inc. v. Semon, 290 AD2d 184, 736 NYS2d 539, 541 ( 3d Dept. 2002 ), lv. app. dis. 98 NY2d 647 ( 2002 )..." )]. And lastly, the absence of a showing of prejudice [FN17] [ or the application of the doctrines of good cause shown [FN18] and substantial compliance [FN19] ] does not apply to jurisdictional defects such as a failure to serve the Superintendent of Schools [ See e.g., Orange And Rockland Utilities, Inc., 11 Misc 3d 1051 ( Rockland Sup. 2006 ) ( " However, like the situation in Premier Self Storage of Lancaster v. Fusco ( 12 AD3d 1135, 784 NYS2d 443 ( 4TH Dept. 2004 )) and Majaars Realty Assoc. v. Town of Poughkeepsie ( 10 Misc 3d 1061 ( Dutchess Sup. 2005 )) the instant matter involves a jurisdictional defect of failing to serve the proper persons, the Superintendent of Schools, of which the excusal for good cause [*5]due to a lack of prejudice does not relate " )].

The 2000 Petition

The 2000 Petition is addressed to, among others, the " City of Poughkeepsie School District, Business Office "[FN20]. The affidavit of service [FN21] by mail on August 1, 2000 is to the " Poughkeepsie City School District, Business Office ". Neither the 2000 Petition nor the affidavit of service are addressed to the Superintendent of Schools and as such the Petition is jurisdictionally defective. The 2000 Petition is dismissed pursuant to R.P.T.L. § 708(3).

In addition, the Note of Issue for the 2000 Petition [ dated July 27, 2000 ] is dated January 31, 2006 and the affidavit of service upon Stephen J. Wing, Corporation Counsel, City of Poughkeepsie is dated January 31, 2006 [FN22], five and one half ( 5 ½ ) years after commencement of the 2000 tax certiorari proceeding. The 2000 Petition was abandoned and is dismissed pursuant to R.P.T.L. § 718(2)(d) [ See e.g., Rose Mount Vernon Corp. v. Assessor of the City of Mount Vernon, 1 Misc 3d 906 ( West. Sup. 2003 )( failure to file Notes of Issue within four years of service requires dismissal of Petitions " as having been abandoned pursuant to R.P.T.L. § 718(2)(d) [ Should the respondent fail to demand that the petitioner file a note of issue...within four years from the date of commencement of the proceedings, and a note of issue has not otherwise been filed, the proceeding shall be deemed abandoned and order shall constitute a final adjudication of all issues raised in the proceeding ] [ See e.g., Matter of Waldbuams #

122 v. Board of Assessors, 58 NY2d 818, 819-820, 459 NYS2d 263, 445 NE2d 646 ( 1983 )...Matter of Pyramid Crossgates Company v. Board of Assessors, 302 AD3d 826, 827-828, 756 NYS2d 316 ( 3d Dept. 2004 )...Matter of LaFarge v. Town of Makakating, 257 AD2d 752, 753, 683 NYS2d 344 ( 3d Dept. 1999 ); Matter of Pherbo Realty Corp. v. Town of Fishkill, 104 AD2d 1037, 1038, 481 NYS2d 110 ( 2d Dept. 1984 )), aff'd 15 AD3d 585, 791 NYS2d 572 ( 2d Dept. 2005 )].

The 2001 Petition [*6]

The 2001 Petition is addressed to, among others, the " City of Poughkeepsie School District, Business Office "[FN23]. The affidavit of service [FN24] by mail on July 31, 2001 is to the " City of Poughkeepsie School District, Administrative Office ". Neither the 2001 Petition nor the affidavit of service are addressed to the Superintendent of Schools and as such the Petition is jurisdictionally defective. The 2001 Petition is dismissed pursuant to R.P.T.L. § 708(3).

In addition, the Note of Issue for the 2001 Petition [ dated July 25, 2001 ] is dated January 31, 2006 and the affidavit of service upon Stephen J. Wing, Corporation Counsel, City of Poughkeepsie is dated January 31, 2006 [FN25], four and one half ( 4 ½ ) years after commencement of the 2001 tax certiorari proceeding. The 2001 Petition was abandoned and is dismissed pursuant to R.P.T.L. § 718(2)(d).

Lastly, the proof of service of mailing of the 2001 Petition was not filed within ten ( 10 ) days of service by mail as required by R.P.T.L. § 708(3)[FN26]. However, since such service is a ministerial act and does not constitute a jurisdictional defect it is excused since Respondents have failed to demonstrate any prejudice [ See e.g., Orange And Rockland Utilities, Inc., 11 Misc 3d 1051 ( Rockland Sup. 2006 )( " the Intervenors have not suffered any prejudice by the Petitioner's ministerial act of filing proof of service with the court five (5) days later than the ten (10)( day ) filing requirement. ...Matter of Bloomingdale's, Inc. ( v. City Assessor of White Plains, 294 AD2d 570, 742 NYS2d 881 ( 2d Dept. 2002 ) " )].

The 2002 Petition

The 2002 Petition is addressed to, among others, the " City of Poughkeepsie School District, Business Office "[FN27]. The affidavit of service [FN28] by mail on August 6, 2002 is to the " City of Poughkeepsie School District, Administrative Office ". [*7]Neither the 2002 Petition nor the affidavit of service are addressed to the Superintendent of Schools and as such the Petition is jurisdictionally defective. The 2002 Petition is dismissed pursuant to R.P.T.L. § 708(3).

The 2003 Petition

The 2003 Petition is addressed to, among others, the " City of Poughkeepsie School District, Business Office "[FN29]. The affidavit of service [FN30] by mail on July 31, 2003 is to the " City of Poughkeepsie School District, Business Office ". Neither the 2003 Petition nor the affidavit of service are addressed to the Superintendent of Schools and as such the Petition is jurisdictionally defective. The 2003 Petition is dismissed pursuant to R.P.T.L. § 708(3).

The 2004 Petition

The 2004 Petition is addressed to, among others, the " City of Poughkeepsie School District, Business Office "[FN31]. The affidavit of service [FN32] by mail on July 28, 2004 is to the " City of Poughkeepsie School District, Business Office ". Neither the 2004 Petition nor the affidavit of service are addressed to the Superintendent of Schools and as such the Petition is jurisdictionally defective. The 2004 Petition is dismissed pursuant to R.P.T.L. § 708(3). [*8]

Based on the foregoing the Respondent's Motion is granted and the Petitioner's 1999, 2000, 2001, 2002, 2003 and 2004 Petitions are dismissed.

Dated: October 2, 2006

White Plains, NY

_____________________________

HON. THOMAS A. DICKERSON

JUSTICE SUPREME COURT

TO:



ENDNOTES [*9] Footnotes

Footnote 1: See Majaars Realty Assoc. v. Town of Poughkeepsie, 10 Misc 3d 1061 ( Dutchess Sup. 2005 )( petitions dismissed for failure to serve Superintendent of Schools; jurisdictional defect ); Matter of 275 N. Middletown Rd. LLP v. Kenney, 10 Misc 3d 1067

( Rockland Sup. 2005 )( service of Petition upon Secretary for Superintendent of Schools adequate service; late filing of proof of service ministerial act and excusable if no prejudice shown ) ; Matter of Commerce Drive Associates LLC v. Board of Assessment Review, 10 Misc 3d 1071 ( Orange Sup. 2006 )( failure to serve proper party is jurisdictional defect; cross motion to extend time of service in the interests of justice granted ); Orange And Rockland Utilities, Inc., 11 Misc 3d 1051 ( Rockland Sup. 2006 )( petitions dismissed for failure to serve Superintendent of Schools; late filing of proof of service ministerial act and excusable if no prejudice shown ).

Footnote 2: Notice Of Motion To Dismiss dated June 12, 2006 at p. 1.

Footnote 3: Affidavit of David D. Hagstrom sworn to June 12, 2006

[ " Hagstrom Aff. " ].

Footnote 4: Reply Affidavit of David D. Hagstrom sworn to August 4, 2006

[ " Hagstrom Reply Aff. " ].

Footnote 5: Respondent's Memorandum of Law dated June 12, 2006 [ " R.

Memo. " ].

Footnote 6: Respondent's Reply Memorandum of Law dated August 4, 2006

[ " R. Reply Memo. " ].

Footnote 7: Affirmation In Opposition To Respondent's Motion To Dismiss of J. Joseph McGowan dated July 28, 2006 [ " McGowan Aff. " ]

Footnote 8: Petitioner's Memorandum of Law in Opposition to Motion To Dismiss dated July 28, 2006

[ " P. Memo. " ].

Footnote 9: Hagstrom Reply Aff. at Ex. A.

Footnote 10: Hagstrom Aff. At Exs. A-I; Hagstrom Reply Aff. At Ex. A; McGowan Aff. at Exs. A-F.

Footnote 11: Hagstrom Aff. at para. 4 & Ex. A.

Footnote 12: Hagstrom Aff. at para. 4 & Ex. B.

Footnote 13: P. Memo. at p. 2 ( " The Administrative Office of the City School District includes the Superintendent's Office, Building and Grounds, the Business Office, Curriculum Instruction Office, Health Benefits, Payroll, Personnel Office, Tax Collector and Transportation Office " ).

Footnote 14: Hagstrom Reply Aff. at para. 6. Contrary to the assertions at McGowan Aff. at para. 7 it is the Petitioner and not the Respondent that has the burden of proof of proper service, i.e., Petitioner must demonstrate that the Superintendent of Schools or an authorized agent was served with the Petition [ See e.g., Matter of 275 N. Middletown Rd. LLP v. Kenney, 10 Misc 3d 1067

( Rockland Sup. 2005 )( Secretary of Superintendent of Schools signed a return receipt requested form; " It would, of course, have been more prudent for the Petitioner to have served the Superintendent...since, had the Petitioner not used Certified mailing, it would have been more difficult to demonstrate that the proper party...had been served " ); Orange And Rockland Utilities, Inc., 11 Misc 3d 1051 ( Rockland Sup. 2006 )( " the Court has not been presented with any proof, whatsoever, that the Superintendent of Schools was served with the Petition...There was no attempt by the Petitioner to serve the Superintendent of Schools..." )].

Footnote 15: McGowan Aff. at pp. 3-4; P. Memo. at pp. 1-3.

Footnote 16: Hagstrom Reply Aff. at para. 8; R. Reply Memo. at pp. 2-3.

Footnote 17: McGowan Aff. at pp. 4-5; P. Memo. at pp. 5-6.

Footnote 18: R. Memo. at pp. 6-7.

Footnote 19: McGowan Aff. at paras. 20-21; P. Memo. at pp. 4-5.

Footnote 20: Hagstrom Aff. at para. 5 & Ex. C; Hagstrom Reply Aff. at Ex. A.

Footnote 21: Hagstrom Aff. at Ex. D.

Footnote 22: Hagstrom Aff. at para. 5 & Ex. C.

Footnote 23: Hagstrom Reply Aff. at Ex. A.

Footnote 24: Hagstrom Aff. at para. 9 & Ex. F.

Footnote 25: Hagstrom Aff. at para. 8 & Ex. E.

Footnote 26: Hagstrom Aff. at para. 9 & Ex. F; McGowan Aff. at para. 6.

Footnote 27: Hagstrom Reply Aff. at Ex. A.

Footnote 28: Hagstrom Aff. at para. 10 & Ex. G.

Footnote 29: Hagstrom Reply Aff. at Ex. A.

Footnote 30: Hagstrom Aff. at para. 10 & Ex. H.

Footnote 31: Hagstrom Reply Aff. at Ex. A.

Footnote 32: Hagstrom Aff. at para. 10 & Ex. I.