Citation Numbers: 135 Misc. 2d 790
Judges: Travers
Filed Date: 6/10/1987
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
This is an application for an order extending the Statute of Limitations to allow the petitioner to commence a CPLR article 78 proceeding against the State Tax Commission (Commission).
The papers submitted on this motion show that Ralph Roye, the "sole proprietor” of the petitioner corporation died on September 30, 1982; that under the terms of his last will and testament admitted to probate in Kings County, New York, an undivided one-half interest "in the restaurant, bar and grill located at No. 761 St. John’s Place, Brooklyn, New York” is given to Dolores Chin, and to Dolores Chin in trust "for my daughter, Ingrid Chin”. Dolores Chin, mother of Ingrid, is designated executrix and trustee in the will. It was the operation of a business at these premises which lead to the sales tax question.
Concededly, no proceeding under CPLR article 78 has been commenced. The present application to extend the Statute of Limitations is brought by Dolores Chin alleging that Ingrid Chin is an infant, age 13, who has been adversely affected by the Commission’s decision.
Under CPLR 217, a proceeding of this nature must be commenced within four months after the final determination or with leave of the court "where the petitioner or the person whom he represents, at the time * * * was under a disability specified in section 208”. In such case, the proceeding must be commenced within two years.
In the case now before the court, the sole shareholder of the corporation died after the initial determination and before the final decision of the Commission.
Arguably, this infant is adversely affected by the final decision of the Commission, although the named petitioner is
The motion to extend the time in which to institute a proceeding under CPLR article 78 to review the decision of the Commission dated May 28, 1986 is granted upon the condition that petitioner comply with section 1138 (a) (4) of the Tax Law.
All rights are reserved to the Commission to raise any and all defenses including the defense of Statute of Limitations in the article 78 proceeding, if such a proceeding is commenced.