Massa v. New York State Tax Com'n

• Citation: 102 A.D.2d 968,477 N.Y.S.2d 838
• Parties: In the Matter of John J. MASSA, Appellant, v. NEW YORK STATE TAX COMMISSION, Respondent.
• Decision Date: 21 June 1984
• Court: New York Supreme Court Appellate Division

Page 838

477 N.Y.S.2d 838

102 A.D.2d 968

In the Matter of John J. MASSA, Appellant, v. NEW YORK STATE TAX COMMISSION, Respondent.

Supreme Court, Appellate Division Third Department.

June 21, 1984.

John J. Massa, appellant, pro se.

Robert Abrams, Atty. Gen. (Wayne L. Benjamin, Asst. Atty. Gen., of counsel), for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered August 26, 1983 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition for lack of jurisdiction.

On December 24, 1982, respondent rendered a decision on petitioner's appeal from three notices of determination and demand for payment of sales and use taxes. On April 19, 1983, petitioner instituted this CPLR article 78 proceeding to review respondent's determination. Respondent then moved to dismiss the petition, alleging that Supreme Court did not have jurisdiction because petitioner had failed to comply with the requirements of section 1138 (subd. par. ) of the Tax Law. That statute requires any individual challenging a sales and use tax assessment in a CPLR article 78 proceeding to first file an undertaking, for the amount of tax assessed, with respondent. Special Term, holding that the undertaking requirement was jurisdictional and could not be waived by the courts, granted the motion to dismiss. This appeal by petitioner ensued.

Petitioner contends that Special Term erred when it dismissed the petition and ruled that his failure to file an undertaking deprived the court of jurisdiction. This contention must be rejected, as it is well settled that the requirement of an undertaking prior to judicial review is a "strict condition precedent" to a CPLR article 78 proceeding (Matter of Parsons v. State Tax Comm., 34 N.Y.2d 190, 197, 356 N.Y.S.2d 593, 313 N.E.2d 57). Indeed, even a nonadvertent delay in the filing of the undertaking is fatal to Special Term's jurisdiction (see Matter of Penney Co. v. New York State Tax Comm., 86 A.D.2d 705, 446 N.Y.S.2d 547, mot. for lv. to app. den. 56 N.Y.2d 507, 453 N.Y.S.2d 1026, 438 N.E.2d 1147; cf. Matter of Cooper v. Tully, 79 A.D.2d 757, 434 N.Y.S.2d 794).

Petitioner, however, contends that the undertaking requirement is not applicable to him as a "poor person" unable to file the sum of the assessment. Initially, it should be noted that petitioner has not been adjudicated a "poor person" and has offered no evidence to indicate his financial status. Moreover, in a recent decision upholding the constitutionality of the prepayment requirement of section 1138 (subd. par. ) of the Tax Law, this court opined that "is no provision in section 1138 for a case-by-case review of ...