Matter of Waldbaum's 122, Inc. v. Bd. of Assessors of the City of Mount Vernon

58 N.Y.2d 818 (1983)

In the Matter of Waldbaum's #122, Inc., Appellant, v. Board of Assessors of the City of Mount Vernon et al., Respondents.

Court of Appeals of the State of New York.

Decided January 18, 1983.

Michael T. Schroder for appellant.

Joseph S. Ragno, Corporation Counsel (Jerold S. Slate of counsel), for respondents.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge SIMONS taking no part.

*819MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Petitioner's failure to file a note of issue within four years from service of the 1977 petition or to obtain a stipulation or court order within the four-year period extending its time for filing required dismissal of that petition. Not only is section 718 of the Real Property Tax Law phrased in mandatory terms ("Unless a note of issue is filed * * * an order dismissing the petition shall be entered without notice and such order shall constitute a final adjudication of all issues raised in the proceeding" [emphasis supplied]) (see Matter of King v Carey, 57 N.Y.2d 505; Gonkjur Assoc. v Abrams, 57 N.Y.2d 853; Matter of Albano v Kirby, 36 N.Y.2d 526), *820 but also the statute was a re-enactment of a previously repealed provision and was enacted "to restore the four year limitation for judicial proceedings to review tax assessments," and to require that "some action must be taken during the four-year period to indicate that the issues are still alive" (Memorandum of Assemblyman Milton Jonas, sponsor of the bill, NY Legis Ann, 1976, p 346), in order to relieve court congestion and to reduce the fiscal problems occasioned by the pyramiding of review proceedings on the same parcel that otherwise occurred (id.). Section 718 of the Real Property Tax Law is, therefore, distinguishable from former rule 302 of the Rules of Civil Practice (now CPLR 3404) considered in Marco v Sachs (10 N.Y.2d 542) in that both its wording and its legislative history demonstrate the intention, not found in Marco, "to have the rule rigidly applied irrespective of any and all circumstances" (10 NY2d, at p 550). Nor could settlement discussions conducted after the four-year period had elapsed without either filing or an extension revive petitioner's right to proceed on the abandoned petition.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.