Miller v. Board of Assessors

Decision Date18 December 1997
Parties, 689 N.E.2d 906, 1997 N.Y. Slip Op. 11,108 In the Matter of Carol MILLER et al., Appellants, v. BOARD OF ASSESSORS et al., Respondents.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

WESLEY, Judge.

Petitioners appeal from that part of an order of the Appellate Division that affirmed an order of Supreme Court granting respondents' motion to dismiss petitioners' tax certiorari petition with respect to 17 properties for the 1994-1995 tax year (164 Misc.2d 62, 623 N.Y.S.2d 714). The petition was dismissed with respect to those 17 properties because at the time it was filed it did not contain written authorizations from the owners of the properties for petitioners' attorney to verify the petition on their behalf. Because written authorizations were supplied with respect to 16 of the 17 properties prior to the return date of the petition, the petition should not have been dismissed with respect to those 16 properties.

I.

Pursuant to Real Property Tax Law article 7 on August 4, 1994, petitioners served the Town of Islip with a single notice of petition and petition relating to 30 separate properties. Respondents thereafter moved to dismiss the petition with respect to all of the properties, because written authorizations had not accompanied the verification of the grievance complaint (as required by RPTL 524). In addition, respondents moved to dismiss the petition with respect to 18 of the 30 properties, because written authorizations did not accompany the verification of the petition for those properties (as required by RPTL 706). Respondents also sought to dismiss the petition with respect to two of the properties which had been sold, and for which the petition had been brought in the name of the prior owners.

In opposition to the motion, petitioners pointed out that respondents' attorney had notified them by letter dated August 22, 1994 that the petition lacked authorizations for only 17 of the properties (the letter omitted the property belonging to Barbara DeRuvo). Petitioners' attorney obtained authorizations from the owners of 16 of those 17 properties and served copies of the authorizations on respondents prior to the return date of the petition.

With respect to the 12 properties for which written authorizations had been filed with the petition, Supreme Court denied respondents' motion to dismiss, holding that the lack of authorizations at the grievance stage was not a bar to the tax certiorari petition. The court also held that respondents had waived their objection to the lack of a written authorization from Ms. DeRuvo, by not including her property in the August 22, 1994 letter or otherwise objecting with due diligence as required by CPLR 3022. With respect to the remaining 17 properties, the court held that respondents had objected to the petition with due diligence in the August 22, 1994 letter, 18 days after the petition was filed, and granted the motion to dismiss. The court found that respondents had acted with due diligence based upon respondents' receipt of almost 10,000 tax certiorari petitions within a limited time.

With respect to one of the two properties that had been sold prior to the article 7 proceeding, Supreme Court noted that respondents' motion to dismiss had already been granted because of respondents' timely objection to the petition's defective verification. 1 With respect to the other property that had been sold, the court considered the error in naming the prior owner to have been a technical defect, citing Matter of Rotblit v. Board of Assessors, 121 A.D.2d 727, 504 N.Y.S.2d 61. 2

The Appellate Division affirmed for reasons stated by Justice Werner. We dismissed respondents' motion for leave to appeal from portions of the Appellate Division order because those portions were not final (90 N.Y.2d 845, 660 N.Y.S.2d 870, 683 N.E.2d 776), but we entertained petitioners' cross motion for leave to appeal on the merits by virtue of party finality and granted the cross motion. With respect to the 16 properties for which written authorizations were filed prior to the return date of the petition, we now reverse.

II.

Section 706(2) of the Real Property Tax Law provides in pertinent part that a petition to review a tax assessment "shall be duly verified by the petitioner, an officer thereof, or by an agent thereof who has been authorized in writing to verify and file such petition and whose authorization is made a part of such petition." This requirement was added in 1977 to prevent the unauthorized filing of assessment protests by attorneys on behalf of taxpayers who are unaware of the filings (Mem. of Attorney-General Re: Assembly 4922-A, at 2, Bill Jacket, L.1977, ch. 438).

The lack of a proper verification on a tax certiorari petition is not a jurisdictional defect (People ex rel. New York City Omnibus Corp. v. Miller, 282 N.Y. 5, 9, 24 N.E.2d 722; Bergman v. Horne, 100 A.D.2d 526, 527, 473 N.Y.S.2d 212). Nothing in the language of RPTL 706 purports to limit the subject matter jurisdiction of Supreme Court over a tax certiorari petition, when the petition is verified by an agent of the petitioner and the agent's authorization does not accompany the petition (see generally, Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718-719, 658 N.Y.S.2d 205, 680 N.E.2d 578). Nevertheless, when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient "with due diligence" returns the petition with notification of the reason(s) for deeming the verification defective (CPLR 3022). 3

We need not decide whether Supreme Court erred in its determination that respondents acted with due diligence when they notified petitioners of the defective verifications 18 days after the petition was filed. Even if respondents' objection to the defective verifications was not waived, the defect was corrected for 16 of the 17 properties when the written authorizations from the owners of those properties were filed (see, Matter of Astoria Fed. Sav. & Loan Assn. v. Board of Assessors...

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  • Angletti v. Morreale
    • United States
    • New York Supreme Court — Appellate Division
    • August 19, 2015
    ...the verification of the petition by petitioner's attorney constitutes a jurisdictional defect (see Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86, 666 N.Y.S.2d 1012, 689 N.E.2d 906 ; People ex rel. New York City Omnibus Corp. v. Miller, 282 N.Y. 5, 9, 24 N.E.2d 722 ). We note that......
  • Thomas v. Eugene
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    • New York Supreme Court
    • August 8, 2013
    ...381 N.E.2d 165 [1978] [failure to verify petition in election matter jurisdictional]; but see Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86, 666 N.Y.S.2d 1012, 689 N.E.2d 906 [1997] [failure to verify petition in a tax certiorari proceeding is not jurisdictional] ), the verificat......
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    • October 16, 2019
    ...obvious mistakes and did not prejudice a substantial right of any party (see CPLR 2001, 3026 ; Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86–87, 666 N.Y.S.2d 1012, 689 N.E.2d 906 ; Matter of Greenfield v. Town of Babylon Dept. of Assessment, 76 A.D.3d 1071, 1073, 908 N.Y.S.2d 251......
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