Fox v. New York State Tax Commission

Edward S. Conway, J.

This is a motion made by the respondent by an order to show cause which seeks to reargue a motion previously made by respondent to dismiss the petition herein upon the ground that the proceeding was not brought within four months after the date of mailing of the decision sought to be reviewed as required by section 690 of the Tax Law. The original petition and motion regularly came on to be heard before this court on June 25,1971 at a Special Term.

The respondent, in its moving papers, contends that personal service of the petition was not effected within four months as required by the CPLR.

The proceeding was brought .pursuant to article 78 of the CPLR for review of a determination of the State Tax Commission. The time in which to commence this proceeding expired May 15, 1971. However, since May 15, 1971 fell on a Saturday, the time in which to commence this proceeding was extended to May 17,1971. (General Construction Law, § 25; Tax Law, § 691, subd. [c].)

A copy of the notice of petition and the petition were received by mail in the office of the State Tax Commission on May 17,1971.

Personal service on a Deputy Tax Commissioner was not effected, however, until May 21,1971, four days after the time to commence the proceeding had expired.

CPLR 403 (subd. [c]) provides:

“ § 403. Notice of petition; service; order to show cause.

“ (c) Manner of service. A notice of petition shall be served in the same manner as a summons in an action. ”

Service by mail was insufficient in this proceeding in the absence of any order authorizing service other than in the manner provided for by personal service of the summons in an action. (Matter of Cadwell v. Du Mond, 200 Misc. 359.)

The proceeding for review under article 78 of the CPLR was not commenced within four months and should be dismissed.

Application for reargument granted and motion of respondent to dismiss the petition is now granted.