Goetz v. Christine Malafi & Suffolk Cnty. Dept. of Fin. & Taxation

• Decision Date: 20 December 2013
• Citation: 42 Misc.3d 92,981 N.Y.S.2d 892,2013 N.Y. Slip Op. 23441
• Court: New York Supreme Court — Appellate Term
• Parties: J. Harry GOETZ, Appellant, v. Christine MALAFI and Suffolk County Dept. of Finance & Taxation, Respondents.

42 Misc.3d 92

981 N.Y.S.2d 892

2013 N.Y. Slip Op. 23441

J. Harry GOETZ, Appellant,

v.Christine MALAFI and Suffolk County Dept. of Finance & Taxation, Respondents.

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

Dec. 20, 2013.

J. Harry Goetz, appellant pro se.

Dennis M. Brown, County Attorney, Hauppauge (Jacqueline Caputi of counsel), for respondents.

PRESENT: MARANO, J.P., NICOLAI and LaSALLE, JJ.

Appeal from a judgment of the District Court of Suffolk County, Fifth District (Vincent J. Martorana, J.), entered May 11, 2012. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is modified by providing that plaintiff is awarded the principal sum of $4.87 as against defendant Suffolk County Dept. of Finance & Taxation; as so modified, the judgment is affirmed, without costs.

Plaintiff alleges in this small claims action that he was wrongfully charged a late fee and an excessive rate of interest on his real property taxes. Additionally, he seeks to recover for the time he has spent and expenses he has incurred in prosecuting this litigation.

At a nonjury trial, plaintiff testified that he owned a home in Suffolk County; that real property taxes were due for his home on May 31, 2011; and that, consistent with his past practice, on the day the taxes were due, he went to a United States post office and mailed a check in payment of his real property taxes to Suffolk County Dept. of Finance & Taxation (defendant). Defendant established, however, that plaintiff's envelope had been postmarked only on June 6, 2011. Defendant thereafter assessed a total sum of $267.27 against plaintiff for the period through October 31, 2011, which sum included a late fee and interest. Plaintiff paid this sum under protest. Plaintiff asserted at trial, and continues to argue on appeal, that his tax payment was timely and, in addition, that he was charged an excessive rate of interest.

Suffolk County real property taxes become a lien against property on December first of each year (Suffolk County Tax Act [SCTA] § 13[b] ), although where, as here, two half-year payments have been authorized, no penalty is due if the first half of the annual taxes is paid on or before the succeeding January 10th and the second half is paid on or before the succeeding May 31st (SCTA § 13 [c] ). Where real property taxes are paid by mail, the date of the postmark is deemed to be the payment date ( seeReal Property Tax law § 925[1] [a]; see also 1981 Ops St Comp No.1981–264). Since it was established that the envelope in which plaintiff's second half taxes were mailed was postmarked June 6, 2011, we find that the District Court properly concluded that plaintiff's tax payment was untimely.

SCTA § 13–a (1) imposes a penalty on late real property tax payments, calculated at the rate of five percent of the amount of the unpaid tax. The real property tax due from plaintiff on May 31st was $2,319.68; defendants therefore correctly determined that plaintiff owed a penalty of five percent of that sum, which equals $115.98. When a payment due on May 31st is late, interest is owed on both the tax and on the penalty ( see SCTA § 13–a [2] ), and...