Macy's Primary Real Estate v. Ass'r City of White Plains

• Decision Date: 04 March 2002
• Docket Number: 00-08714,2
• Parties: In the Matter of Macy's Primary Real Estate, Inc., petitioner-respondent, v Assessor of City of White Plains, et al., respondents-respondents; White Plains City School District, intervenor-appellant. 2000-08714 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Argued -
• Court: New York Supreme Court — Appellate Division

In the Matter of Macy's Primary Real Estate, Inc., petitioner-respondent v Assessor of City of White Plains, et al., respondents-respondents;

White Plains City School District, intervenor-appellant

2000-08714

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued - November 5, 2001

Decided on March 4, 2002

APPEAL by the intervenor White Plains City School District, as limited by its brief, in consolidated proceedings pursuant to Real Property Tax Law article 7 to review the real estate tax assessments of the petitioner's properties for the tax years 1995, 1996, 1997, and 1998, from so much of an order of the Supreme Court (Louis C. Palella, J.), entered July 27, 1999, in Westchester County, as denied that branch of the intervenor's motion which was to enjoin the petitioner from enforcing against it two judgments of the same court, both entered August 12, 1999, directing the intervenor to refund taxes paid by the petitioner in accordance with the reduced assessment values contained therein, and granted the cross motion of the petitioner to deem the intervenor timely served with notice of the proceedings pursuant to RPTL 708(3)

Plunkett & Jaffe, P.C., White Plains, N.Y. (Marc E. Sharff of counsel), for intervenor-appellant.

Stephen P. Kramer, New York, N.Y., for petitioner-respondent.

John E. Watkins, Jr., White Plains, N.Y. (Liane V. Watkins of counsel), for respondents-respondents.

OPINION & ORDER

FRED T. SANTUCCI, J.P.

GLORIA GOLDSTEIN

LEO F. McGINITY

STEPHEN G. CRANE, JJ.

GOLDSTEIN, J.

At issue here is whether two judgments, each entered August 12, 1999, reducing the real estate tax assessments of the petitioner's properties for the tax years 1995, 1996, 1997, and 1998, and directing a refund of tax paid in those years, are enforceable against the appellant White Plains City School District. We hold that they are not, owing to the petitioner's failure to comply with RPTL 708(3).

The petitioner challenged real estate tax assessments for the tax years 1995, 1996, 1997, and 1998, in four separate tax certiorari proceedings, commenced in 1995, 1996, 1997, and 1998, respectively. In 1999, the petitioner and the respondents Assessor of the City of White Plains, Board of Assessment Review of the City of White Plains, and the City of White Plains (hereinafter referred to collectively as the City of White Plains), entered into a stipulation of settlement. The terms of that stipulation were incorporated into two judgments, each entered August 12, 1999. On or about September 1, 1999, the petitioner served copies of the judgments, with notice of entry and demands for refunds, upon, among others, the appellant.

By order to show cause dated September 29, 1999, the appellant moved for leave to intervene in the tax certiorari proceedings for the purpose of seeking an injunction, barring enforcement of the judgments against it on the ground that the petitions in all four tax certiorari proceedings "were never sent to or served upon the School District". In support of its application, the appellant cited RPTL 708(3), as amended, which requires that a petitioner in a tax certiorari proceeding mail the petition with notice to an affected school district within 10 days of service of the petition upon the respondents. Effective January 1, 1996, that provision was amended to provide that failure to comply "with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown". The appellant argued that, since it never was served with notice of the proceedings while they were pending, "there is technically nothing to dismiss, at least against the School District".

The petitioner did not dispute that it failed to notify the appellant of the proceedings, nor did it set forth a reasonable excuse for its failure to do so. Rather, it cross-moved for an order, in effect, dispensing with the requirements of RPTL 708(3) altogether, by "deeming the petitions mailed within 10 days of service nunc pro tunc".

The City of White Plains "[took] no position" with respect to the appellant's application.

The Supreme Court, in the determination under review, held that "[i]t is conceded that petitioner did not make the required mailing under any of the versions of the statute". Accepting the petitioner's argument that compliance with RPTL 708(3) could be dispensed with, the Supreme Court deemed "the petitions and notices herein * * * timely served upon the School District, nunc pro tunc, the totality of the circumstances showing good cause for the granting of this relief (RPTL 708[3])". Its finding of "good cause" was not based upon a reasonable excuse for the petitioner's failure to comply with RPTL 708(3), but rather, upon a legal conclusion that the Legislature has granted school districts no voice in the real estate tax assessment process, and no right to be involved in settlement discussions.

The conclusion of the Supreme Court, that compliance with RPTL 708(3) is merely precatory, is not supported by the plain language of the statute or its legislative history.

RPTL former 708(3), in effect when the the petitioner commenced the first of these proceedings in 1995, mandated mailing of the petition to the clerk of the school district within 10 days of service. However, the statute made no provision for a remedy for failure to comply (see, Matter of Rapone v Shokey, 43 Misc.2d 87).

Pursuant to RPTL former 708(3), untimely compliance did not warrant dismissal (see, Matter of Magee v Board of Assessors of Town of Nelson, 49 Misc.2d 499, affd sub nom. Matter of Fieser v Board of Assessors of Town of Nelson, 24 A.D.2d 1045 [on opn at Special Term]). In Matter of Xerox Corp. v Sanger (79 Misc.2d 480, 483), cited by this court with approval in Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven (246 A.D.2d 156, 165), the court authorized late compliance, on the ground that "no substantial right of the school district will be prejudiced by permitting mailing * * * at this time. Nothing has occurred in these proceedings".

However, where compliance with RPTL former 708(3) occurred one day before the proceeding was settled, the Appellate Division, Third Department, in Matter of Stanford Assocs. v Board of Assessors of Town of Niskayuna (39 A.D.2d 800, 801), cited with approval in Plantech Hous. v Conlan (74 A.D.2d 920), held that the stipulation "should not be binding" on the school district, since the school district was entitled to be heard. Accordingly, compliance with RPTL former 708(3) was not precatory, and the provision granted school districts a substantial right.

In 1995, the Legislature amended RPTL 708(3), effective January 1, 1996, to provide that an "affected school board shall be deemed a necessary party" (L 1995, ch 693, § 1). In his memorandum in support, Senator Joseph R. Holland noted that school districts needed a stronger voice in tax certiorari proceedings, since such proceedings "can drastically and unexpectedly reduce the budgeted revenue source of a school district if the property owners are successful in having their assessments reduced" (Mem of...