National Gypsum Co. v. Assessor of Town of Tonawada

OPINION OF THE COURT

G.B. Smith, J.

The issue here is whether the notice of petition in a tax certiorari proceeding pursuant to RPTL article 7 was jurisdiction-ally defective where petitioner included a return date that was later changed by court personnel. We conclude that it was not.

On July 16, 2002, petitioner sought to commence the instant tax certiorari proceeding in Supreme Court, Erie County when it filed and served a notice of petition and petition on respondents (collectively the Town) seeking a reduction in the tax assessment of its property located in the Town of Tonawanda for the taxable status date May 1, 2002. The notice of petition stated that the matter would be heard in Supreme Court at 9:00 a.m. “on September 24[,] 2002, or on such other date as specified by the Court, at the opening of Court on that day, or as soon thereafter as counsel can be heard.” The time and place on the petition were chosen by petitioner’s attorney. After the notice of pe-

tition was filed, the Clerk of the Court assigned a return date of August 28, 2002 at 9:30 a.m. before Justice Dillon for the hearing of the petition.¹ On August 20, 2002, eight days before the court-assigned return date, the Town moved to dismiss the instant petition arguing that petitioner failed to obtain personal jurisdiction over the Town because the notice of petition served upon it did not include proper notice of the time and place for the hearing on the petition. Moreover, the Town contended that the inclusion of a “fictitious” hearing date when the notice of petition was filed did not satisfy CPLR 403 (a) and constituted a jurisdictional defect.

Supreme Court agreed with the Town and dismissed the petition. By a 3-2 vote, the Appellate Division reversed and reinstated the petition.² The Appellate Division granted leave and certified the following question: “Was the order of this Court, entered June 14, 2004, properly made?” We now answer yes to that question and affirm.

RPTL 700 (2) authorizes the use of special proceedings in tax certiorari matters. RPTL 704 (1) provides, in pertinent part: CPLR 403 (a) provides that “[a] notice of petition shall specify the time and place of the hearing on the petition and the supporting affidavits, if any, accompanying the petition.” A notice of petition must comply with the strict statutory mandates for obtaining personal jurisdiction when served (see Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745 [2002]). The Fourth Department has concluded that failure to include the time and place on a notice of petition in a tax certiorari proceeding is a jurisdictional defect that will warrant dismissal of the tax certiorari petition (see Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, 309 AD2d 1251 [4th Dept 2003], lv granted 1 NY3d 507 [2004], appeal withdrawn 3 NY3d 635 [2004]).³

“Any person claiming to be aggrieved by any assessment of real property upon any assessment roll may commence a proceeding under this article by filing a petition ... in the manner set forth in [CPLR 304] together with a notice in writing of an application for review under this article returnable not less than twenty nor more than ninety days after service of such petition and notice, except that in a city having a population of one million or more, such a proceeding shall be commenced by filing of a petition alone.”

Relying on Niagara Mohawk, the Town claims that the failure to insert the actual time and place is tantamount to not inserting any time and place at all. Here, however, there can be no doubt that petitioner fully complied with CPLR 403 (a) because in its notice of petition, it inserted a time and place for the hearing which conformed with the applicable statutory notice requirements (see RPTL 704 [l]).⁴ The hearing date fell on a Tuesday during business hours, not on the weekend or a holiday.⁵ Under the particular circumstances presented here, we agree with the Appellate Division that the notice of petition is jurisdictionally sound and that the petition should be reinstated. Moreover, we conclude that petitioner has complied with CPLR 403 (a) even though the original return date was changed by court personnel once a Supreme Court Justice was assigned. As the Appellate Division stated, “Any other interpretation of the statute would be patently unfair to a party attempting to commence such a proceeding” (Matter of National Gypsum Co., Inc. v Assessor of Town of Tonawanda, 8 AD3d 953, 954 [4th Dept 2004]; see also Siegel, NY Prac § 553, at 912-913 [3d ed]).

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, etc.

1 . According to the Town, it found out about the new return date when it called the Erie County Clerk seeking details regarding the September 2002 return date.

2 . The dissent in the Appellate Division concluded that the plain language of CPLR 403 (a) requires that the notice of petition include the actual hearing date. It stated, “Even if a fictitious date were to suffice for filing purposes, it would not necessarily follow that service of a petition and notice of petition with a fictitious hearing date would confer personal jurisdiction” (Matter of National Gypsum Co., Inc. v Assessor of Town of Tonawanda, 8 AD3d 953, 955 [4th Dept 2004]). The dissent further concluded, “It cannot be less of a defect to give notice of a hearing date that in fact is later than the actual hearing date than to give no hearing date at all. Furthermore, we note that the fact that [the Town] otherwise knew of the actual hearing date is irrelevant” (id. at 956).

3 . Contra, Matter of Sears, Roebuck & Co. v Board of Assessors of Town of Union, 182 AD2d 970 (3d Dept 1992).

4 . RPTL 704 (1) provides the statutory notice requirements for the purpose of the instant tax certiorari proceeding. Further, RPTL 704 (1) clearly implies that the petitioner is to select a return date.

5 . Professor David D. Siegel, in his treatise, New York Practice, acknowledged the difficulties a petitioner’s lawyer may face in setting a return date but concluded that “the best bet is to set a return day satisfactoiy to statutory notice requirements, even if it appears inevitable that the date selected will be postponed after a judge is assigned” (footnote omitted) (Siegel, NY Prac § 553, at 913 [3d ed]).