Consolidated Edison Co. of New York v. State Bd. of Equalization and Assessment

• Decision Date: 26 January 1978
• Citation: 60 A.D.2d 356,401 N.Y.S.2d 871
• Parties: In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, Appellant, v. STATE BOARD OF EQUALIZATION AND ASSESSMENT, Respondent, and Various Municipalities within Westchester County, Intervenors-Respondents. In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, Appellant, v. STATE BOARD OF EQUALIZATION AND ASSESSMENT, Respondent, and Counties of New York City, Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 871

401 N.Y.S.2d 871

60 A.D.2d 356

In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, Appellant, v. STATE BOARD OF EQUALIZATION AND ASSESSMENT, Respondent, and Various Municipalities within Westchester County,

Intervenors-Respondents.

In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, Appellant, v. STATE BOARD OF EQUALIZATION AND ASSESSMENT, Respondent, and Counties of New York City, Intervenors-Respondents.

Supreme Court, Appellate Division, Third Department.

Jan. 26, 1978.

Williams & O'Neill, New York City (Martin B. Cowan, New York City, of counsel, Wein, Lane & Malkin, New York City), for appellant.

Louis J. Lefkowitz, Atty. Gen., Albany (Joseph P. McCale and Ruth Kessler Toch, Albany, of counsel), for respondent.

Whiteman, Osterman & Hanna, Albany (Melvin H. Osterman, Jr., Albany, of counsel), for Various Municipalities within Westchester County, intervenors-respondents.

W. Bernard Richland, Corp. Counsel, City of New York, New York City (Alfred Weinstein, New York City, of counsel), for Counties of New York City, intervenors-respondents.

Before SWEENEY, J. P., and MAHONEY, LARKIN, MIKOLL and HERLIHY, JJ.

HERLIHY, Justice.

This is an appeal in the first above-entitled proceeding from 19 separate orders and judgments of the Supreme Court at Special Term, entered October 29, 1976 in Albany County, which, in 19 proceedings pursuant to article 7 of the Real Property Tax Law, inter alia, (1) dismissed those portions of the petitions which alleged inequality in the assessment of the special franchises and (2) dismissed those portions of the petitions which alleged illegality in the assessment of the special franchises. Although the court sustained the complaint as sufficiently alleging overvaluation, the intervenors-respondents did not appeal from that aspect of the decision. The petitions here involve 19 proceedings concerning the 1974 assessments of special franchises in seven municipalities outside of New York City and the 1975 assessments of special franchises in these and five other municipalities.

These are cross appeals in the second above-entitled proceeding from a single order and judgment of the Supreme Court at Special Term, entered November 3, 1976 in Albany County, in 10 proceedings pursuant to article 7 of the Real Property Tax Law, which, inter alia, (1) struck allegations of inequality in the petitions; (2) struck allegations of illegality from the petitions; (3) denied the cross motion of respondent-intervenor (City of New York) seeking dismissal of the petitions, holding that the petitioner has put in issue the question of overvaluation. Petitioner (Con. Ed.) appeals from numbers 1 and 2. Intervenor-respondent (NYC) cross-appeals from number 3. The petitions here involve 10 proceedings concerning assessments for 1974 and 1975 of special franchises located within the five counties of the City of New York.

The petitioner-taxpayer, Consolidated Edison Company of New York, is a public utility corporation. Pursuant to article 6 of the Real Property Tax Law, the State Board of Equalization and Assessment (Board) for the years 1974 and 1975 issued tentative special franchise assessments (Real Property Tax Law, § 608) and the taxpayer filed complaints with the Board challenging the assessments (Real Property Tax Law, § 610).

The taxpayer received some minor relief from the administrative agency, but, remaining dissatisfied, it commenced these proceedings against the Board seeking a further correction of the assessments.

The taxpayer alleges that there was error by reason of overvaluation, inequality and illegality.

Illegality was premised upon the theory that, pursuant to section 616 of the Real Property Tax Law, certificates of final assessments must be filed by the Board with the local assessors within certain time limits and such assessors must enter the assessment on the assessment roll within certain time limits. The statute uses the language "shall" and we do not perceive that any failure to comply with the time references would be prejudicial to the taxpayer, at least in the present action. Under such circumstances the time limitations are construed as being directive in nature and not mandatory (Rose v. Elliot, 218 App.Div. 287, 290, 218 N.Y.S....