Matter of Bailey v Board of Assessors of County of Nassau
Annotate this CaseDecided on June 8, 2007
Supreme Court, Nassau County
In the Matter of the Application of Jackson Bailey, MARIANNE GOING, DANNY SCHWARTZ, HENRY WEISER, FRANK COVELLI, FRANCINE BROCCO, DAVID ROUBROGEL, MARK ALBARANO, SUSAN POLNASKY, PEARL BITTERMAN, VLADIMIR GORAVATSKY, JEFFREY FEIN, STEPHEN WYLER, WILLIAM WALORDY, SOPHIA HAZTIPETRAKOS, VLADIMIR GURFINKEL, Petitioners,
against
The Board of Assessors of the County of Nassau and THE BOARD OF ASSESSMENT REVIEW OF THE COUNTY OF NASSAU, Respondents.
3846/07
Robert Bichoupan, P.C.
Attorney for Petitioner
175 East Shore Road, Suite 270
Great Neck, NY 11023
Lorna B. Goodman, Esq.
County Attorney fo Nassau County
Attorney for Respondent
240 Old Country Road Mineola, NY 11501
William R. LaMarca, J.
In this special proceeding, counsel for the above noted petitioners moves for an order, inter alia, vacating and setting aside the decisions of Hearing Officer Frank Sideli rendered in the Small Claims Tax Assessment Review (SCAR) proceedings, commenced pursuant to Real Property Tax Law (RPTL) Article 7 for the tax year 2006/2007, and declaring that the assessments rendered for said tax year by respondents, THE BOARD OF ASSESSORS and THE BOARD OF ASSESSMENT REVIEW OF THE COUNTY OF NASSAU (hereinafter referred to as the "COUNTY"), were excessive and unequal, and reducing and correcting said assessments and awarding costs on the motion. The COUNTY opposes the petition which is determined as follows:
The sixteen (16) petitioners are the owners of certain residential properties in Nassau County. The law firm of Robert Bichoupan, P.C. filed petitions for SCAR proceedings on behalf of the sixteen (16) homeowners with the County Clerk on April 28, 2006. Thereafter an individual from the law firm personally served the petitions on the NASSAU COUNTY DEPARTMENT OF ASSESSMENT on May 9, 2006. At the SCAR hearing, held on January 26, 2007, the COUNTY raised the issue of untimely [*2]service. It was the COUNTY's position that, while the petitions were timely filed at the Nassau County Clerk's office on April 28, 2006, they were not served on the NASSAU COUNTY DEPARTMENT OF ASSESSMENT within the required ten (10) days, but rather on the 11th day. In each of the sixteen (16) cases, Hearing Officer Sideli denied the petitions on the ground that the petitions had not been served in a timely manner. Hearing Officer Sideli stated in the decisions that "[p]etitioner did not timely serve petition on the Nassau County Board of Assessment (Real Property Law [sic] § 730)".
RPTL§ 730, entitled "Procedure to review small claims" provides in pertinent part, as
follows:
3. The petition for review . . . shall be filed within thirty days after the completion
and filing of the final assessment roll containing such assessments. . . . Failure to file the petition
within such time shall constitute a complete defense to the petition and the petition must be
dismissed.
* * *
8. The petitioner shall mail a copy
of the petition within ten days from the date of the filing with the clerk of the Supreme Court to:
(a) the clerk of the assessing unit named in the petition . . . . Service upon the clerk
of the assessing unit or other appropriate official specified in paragraph (a) of this
subdivision shall be made by personal delivery or by certified mail, return receipt
requested. In the event that service is made by personal delivery, the clerk of the assessing
unit or other appropriate person shall provide a receipt for such service to the petitioner stating
the date and time of service (emphasis added).
In interpreting the statute we are guided by a well-settled principle of statutory construction whereby courts normally accord statutes their plain meaning, but "will not blindly apply the words of a statute to arrive at an unreasonable or absurd result" (Williams v Williams, 23 NY2d 592, 298 NYS2d 473, 246 NE2d 333 [C.A. 1969]; see also Matter of Rouss, 221 NY 81, 116 NE 782 [ C.A. 1917]; People v Santi, 3 NY3d 234, 785 NYS2d 405. 818 NE2d 1146 [C. A. 2004]).
It is equally well settled that, "[i]n implementing a statute, the courts must of necessity examine the purpose of the statute and determine the intention of the Legislature" (Williams v Williams, supra ). Indeed "[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature" (McKinney's Cons Laws of NY, Book 1, Statutes § 92[a], at p.177). Legislative intent drives judicial interpretations in matters of statutory construction (see, People v Allen, 92 NY2d 378, 681 NYS2d 216, 703 NE2d 1229 [C.A. 1998]); People v Santi, supra ). For example, the RPTL §730 subd. 8 reference to "filing with the clerk of the Supreme Court" has been construed to mean the Nassau County Clerk, not the Clerk of the Supreme Court (see Matter of Mendon Ponds Neighborhood Association v Dehm, et al., 98 NY2d 745, 751 NYS2d 819, 781 NE2d 883 [C.A. 2002]).
It is not disputed that the last day to serve a copy of the petition under RPTL §730 subd.8 by mail was May 8, 2006. However, it is also incontrovertible that had the petitions been mailed on May 8, 2006, the earliest delivery date by mail would have been May 9, [*3]2006, and more likely not until May 10, 2006. In the within action, the petitions were hand delivered on May 9, 2006 to the NASSAU COUNTY DEPARTMENT OF ASSESSMENT. RPTL §730(8) provides for service on "the clerk of the assessing unit . . . by personal delivery or by certified mail . . .". The petitions were served by personal delivery on May 9, 2006, giving the COUNTY good, if not better, notice than had the petitions been mailed on May 8, 2006. The COUNTY was not prejudiced. The respondents had "a full and fair opportunity to contest the petitions". See, Bloomingdale's Inc. v City Assessor, 294 AD2d 570, 742 NYS2d 881 (2nd Dept. 2002).
Furthermore, the cases cited by the COUNTY can be readily distinguished. In Dolan v City of New Rochelle, (Westchester County Supreme Court, Index No. 2679/84, [Donovan, J.]) the petitioner "filed his petition for small claims assessment review on September 6, 1983, two days beyond the 30 day requirement of RPTL 730 subd 3 which provides that failing to file the petition with the County Clerk in a timely manner "shall constitute a complete defense to the petition and the petition must be dismissed". In the case at bar, counsel filed the subject petitions within the thirty (30) day period. There is no mandatory dismissal language in RPTL § 730 subd. 8 for failing to mail a copy of the petition to the clerk of the assessment unit within 10 days of filing with the County Clerk. Additionally, in Gotte, et al v City of White Plains, (Westchester Supreme Court, Filing No. 15/92, Charde, JHO) there was no proof that the additional notice was either mailed to the clerk of the assessing unit or personally delivered in a timely manner so to give the respondents "the full and fair opportunity to contest the petitions" (Bloomingdale's Inc. v City Assessor, supra ). That is in contrast with the case at bar.
After a careful reading of the submissions herein, the Court finds that copies of the notices to Clerk of the Assessment Unit were served in a timely manner and that the Court acquired jurisdiction. Accordingly, it is hereby
ORDERED, that the petition is granted to the extent that each of the sixteen (16) decisions previously issued by the COUNTY is vacated and the underlying petitions are deemed jurisdictionally valid and are remanded for a hearing de novo on the merits. The balance of the relief requested is referred to the hearing.
This constitutes the decision and judgment of the Court.
Dated: June 8, 2007
_________________________
William R. LaMarca, J.S.C.
TO:
bailey,etal-boardofassessors,#
01/taxassessment
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