ONTARIO SQUARE REALTY CORP. v. LAPLANT, DONNA ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 1253 CA 12-00514 PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND WHALEN, JJ. IN THE MATTER OF ONTARIO SQUARE REALTY CORP., PETITIONER-APPELLANT, V MEMORANDUM AND ORDER ASSESSOR OF THE TOWN OF FARMINGTON, DONNA LAPLANT, RESPONDENT-RESPONDENT. PANZARELLA & COIA, P.C., ROCHESTER (CHAD M. HUMMEL OF COUNSEL), FOR PETITIONER-APPELLANT. BOYLAN CODE LLP, ROCHESTER (SHEILA M. CHALIFOUX OF COUNSEL), FOR RESPONDENT-RESPONDENT. Appeal from an order of the Supreme Court, Ontario County (Kenneth R. Fisher, J.), entered January 26, 2011 in a proceeding pursuant to RPTL article 7. The order granted the motion of respondent to dismiss the petition. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Petitioner commenced this RPTL article 7 proceeding seeking review of the real property tax assessment of its property. Supreme Court properly granted respondent’s motion to dismiss the petition on the ground that petitioner failed to serve the notice of petition and petition within the applicable time period provided in CPLR 306-b. In opposing the motion, petitioner’s attorney submitted an affirmation seeking an extension of time for service in the interest of justice. Contrary to petitioner’s contention, it “was required to serve a notice of cross motion in order to obtain the affirmative relief of an extension of time to serve the [petition with a notice of petition or an order to show cause] upon [respondent] pursuant to CPLR 306-b” (Lee v Colley Group McMontebello, LLC, 90 AD3d 1000, 1000-1001; see DeLorenzo v Gabbino Pizza Corp., 83 AD3d 992, 993). In any event, the court properly considered all of the relevant factors in determining whether to extend the time for service in the interest of justice (see CPLR 306-b; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106; Brown v Wilson Farms, Inc., 52 AD3d 1324, 1324-1325), and the court properly denied petitioner’s request for that relief (see Eggleston v A.C. & S., Inc., 17 AD3d 1167, 1167- 1168). Entered: November 9, 2012 Frances E. Cafarell Clerk of the Court