Stevens Medical Arts Bldg. v. City of Mount Vernon

• Decision Date: 21 January 1980
• Citation: 72 A.D.2d 177,424 N.Y.S.2d 230
• Parties: In the Matter of STEVENS MEDICAL ARTS BUILDING, Respondent, v. The CITY OF MOUNT VERNON et al., Appellants. In the Matter of LUCAS BUILDING COMPANY, Respondent, v. The CITY OF MOUNT VERNON et al., Appellants. In the Matter of KENLAW REALTY CORP., Respondent, v. The CITY OF MOUNT VERNON et al., Appellants. In the Matter of George S. KAUFMAN, Respondent, v. The CITY OF MOUNT VERNON et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 230

424 N.Y.S.2d 230

72 A.D.2d 177

In the Matter of STEVENS MEDICAL ARTS BUILDING, Respondent, v. The CITY OF MOUNT VERNON et al., Appellants.

In the Matter of LUCAS BUILDING COMPANY, Respondent, v. The CITY OF MOUNT VERNON et al., Appellants.

In the Matter of KENLAW REALTY CORP., Respondent, v. The CITY OF MOUNT VERNON et al., Appellants.

In the Matter of George S. KAUFMAN, Respondent, v. The CITY OF MOUNT VERNON et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Jan. 21, 1980.

Philip C. Scarpino, Corp. Counsel, Mount Vernon (Corinne Edelbaum, Mount Vernon, of counsel), for appellants.

Milton D. Jacobs, Mount Vernon, for respondents.

Before MOLLEN, P. J., and HOPKINS, TITONE and MANGANO, JJ.

HOPKINS, Justice.

The question before us is the timeliness of these proceedings. The appellant city and its officers claim that under the provisions of the Real Property Tax Law (RPTL) the proceedings must be instituted within 30 days after August 2, 1978, when the city gave notice that the assessment roll had been filed. Since incontestably these proceedings were instituted on September 20, 1978, the city contends that they are time-barred.

Special Term denied appellants' motions to dismiss based on this ground, holding that under the provisions of the city charter, read in conjunction with the provisions of the RPTL, the proceedings were timely brought, since the last day for filing the assessment roll under the charter was August 31, and that date controlled for the measurement of the 30 days' limitation provided by the RPTL (§ 702, subd. 2).

We affirm. The provisions of the RPTL must be read in the light of the provisions of the city charter, and the proceedings were therefore timely instituted within the 30-day limitation.

I

Each of the petitioners is an owner of taxable real property in the City of Mount Vernon. On August 2, 1978 the Commissioner of Assessment and Taxation filed a certified copy of the 1978 assessment roll in the office of the City Clerk. Notice of the completion and filing of the assessment roll was given on August 2, 1978.

On September 20, 1978 each of the petitioners served a petition to review the assessments (see RPTL, § 700), alleging that the assessments were unequal, illegal and represented more than the full value of the properties.

Thereafter the appellants moved to dismiss each of the proceedings on the grounds that it had not been timely begun and did not comply with subdivision 3 of section 307 of the RPTL. Special Term denied the motions, holding that the proceedings had been commenced within the 30-day limitation prescribed by section 702 of the RPTL. Special Term reached that conclusion, although acknowledging that service of the petitions occurred more than 30 days after August 2, 1978. It reasoned that the proceedings were timely because section 235 of the city charter provides that the last day for filing the assessment roll is August 31, and subdivision 2 of section 702 of the RPTL provides that the assessment roll cannot be considered finally completed and filed until the last day set by law for the filing of the assessment roll or until notice thereof has been given as required by law, whichever is later. Hence, the service of the petitions was timely, since it occurred within 30 days of August 31, 1978.

The appellants then moved for leave to reargue. Special Term denied the motion.

On this appeal the appellants argue that Special Term mistakenly construed the statutes, contending that the City Charter should not be applied to alter the provisions of subdivision 1 of section 516 of the RPTL, calling for the filing of the assessment roll on August 1. The interpretation of the statutes by Special Term, say the appellants, defeats the intent of the Legislature to prescribe a readily ascertainable date for the commencement of proceedings to review assessments.

II

Our initial inquiry must be directed to the statutes. Article 5 of the RPTL deals generally with the procedure to be followed for the preparation and filing of assessments. Subdivision 1 of section 516 of the RPTL provides, in part, as follows:

" § 516. Filing of completed assessment roll; notice thereof

"1. On or before the first day of August, the assessors shall finally complete the assessment roll and prepare and file a certified copy thereof in the office of the city or town clerk. The assessors shall forthwith cause a notice to be published once in the official newspaper of such city or town, or if no newspaper has been designated the official newspaper, in a newspaper having general circulation in such city or town, stating that the assessment roll has been finally completed and a certified copy thereof so filed for public inspection."

Article 7 of the RPTL provides generally for the judicial review of assessments. Section 700 of the RPTL reads in part as follows:

" § 700. Proceeding to review an assessment of real property; preference

"1. A proceeding to review an assessment of real property shall be brought as provided in this article unless otherwise provided by law.

"2. All rights, remedies and practices heretofore applicable to a proceeding commenced by a writ of certiorari which are not inconsistent with the provisions of this article shall apply to a proceeding to review an assessment of real property under this article."

Section 702 of the RPTL, as recently amended (L.1977, ch. 620), reads, in part, as follows:

" § 702. Place where and time within which proceeding to be brought

"1. A proceeding to review an assessment of real property under this article shall be brought at a special term of the supreme court in the judicial district in which the assessment to be reviewed was made.

"2. Such a proceeding shall be commenced within thirty days after the final completion and filing of the assessment roll containing such assessment. For the purpose of this section an assessment roll shall not be considered finally completed and filed until the last day set by law for the filing of such assessment roll or until notice thereof has been given as required by law, whichever is later."

Finally, section 2006 of the RPTL (added by L.1958, ch. 959) reads as follows:

" § 2006. Exceptions

"This chapter shall not be deemed to repeal or otherwise affect the provisions of any special or local law or ordinance or of any county, city or village-charter, or other special form of government, it being the intention of the legislature that the same shall continue in full force and effect until and unless otherwise duly amended, repealed or affected."

We turn now to the provisions of the City Charter. Section 235 provides, in part, as follows:

"When the tentative assessment roll has been revised as herein provided the amounts of the assessments as revised as aforesaid shall be duly added and the totals stated, and the commissioner shall verify all three copies as required by the provisions of the tax law and shall duly certify the same to be the general assessment roll of the year in which it is so certified. The commissioner shall thereupon and before the first day of September in each year, file one copy of the said general assessment roll in the office of the city clerk there to remain for fifteen days for public inspection and shall forthwith deliver another copy thereof to the clerk of the board of supervisors of Westchester County, and file the third copy thereof with the comptroller for the purpose of apportioning and extending the taxes of the following year thereon as herein provided. The assessment roll shall thereupon become official and conclusive as to all persons who have not made complaints as provided by this chapter. The commissioner of assessment and taxation shall forthwith cause a notice to be posted conspicuously in at least three public places in the city, and to be published in one or more newspapers published in the city, that such assessment roll has been finally completed and stating that it has been so filed and will be open for public inspection. At the expiration of such fifteen days the city clerk shall return said copy to said commissioner."

In construing the force and effect of these statutory provisions, we must recognize that they cannot be wrenched from their historical setting and prior interpretations (Matter of Horchler, 37 A.D.2d 28, 31, 322 N.Y.S.2d 88, 92, affd. 30 N.Y.2d 725, 332 N.Y.S.2d 896, 283 N.E.2d 768). Moreover, we must respect the precepts that tax statutes should be construed liberally in favor of the taxpayer (Bayview Tower Apts. v. State Tax Comm., 48 A.D.2d 86, 89, 367 N.Y.S.2d 856, 859, affd. 40 N.Y.2d 856, 387 N.Y.S.2d 1002, 356 N.E.2d 474; Matter of Delaware, Lackawanna & Western R. R. Co. v. Assessors of City of Binghamton, 12 A.D.2d 852, 891 N.Y.S.2d 720), and that the dates fixed for the...