Xerox Corp. v. Sanger

• Decision Date: 27 August 1974
• Citation: 360 N.Y.S.2d 161,79 Misc.2d 480
• Parties: In the Matter of the Application for Review under Article 7 of the Real Property Tax Law of a Tax Assessment by XEROX CORPORATION, Petitioner, v. Roy J. SANGER, As Assessor of the Town of Webster, New York, and the Assessment Board of Review of the Town of Webster, New York, Respondents (two cases). In the Matter of the Application for Review under Article 7 of the Real Property Tax Law of a Tax Assessment by XEROX CORPORATION, Petitioner, v. Frances ROSS, As Assessor of the Village of Webster, New York, and the Village Board acting as the Village Board of Assessment Review, Respondents.
• Court: New York Supreme Court

Page 161

360 N.Y.S.2d 161

79 Misc.2d 480

In the Matter of the Application for Review under Article 7

of the Real Property Tax Law of a Tax Assessment

by XEROX CORPORATION, Petitioner, v. Roy J. SANGER, As Assessor of the Town of Webster, New York,

and the Assessment Board of Review of the Town of

Webster, New York, Respondents (two cases).

In the Matter of the Application for Review under Article 7

of the Real Property Tax Law of a Tax Assessment

by XEROX CORPORATION, Petitioner, v. Frances ROSS, As Assessor of the Village of Webster, New

York, and the Village Board acting as the Village

Board of Assessment Review, Respondents.

Supreme Court, Monroe County.

Aug. 27, 1974.

Harris, Beach & Wilcox, Rochester, for petitioner; James M. Hartman, Rochester, of counsel; William L. Dorr and Douglas S. Gates, Rochester, on the brief.

Barrett, Maier & Barrett, P.C., Webster, for Webster Cent. School Dist.; Gerald R. Barrett, Webster, of counsel.

DECISION

JACOB ARK, Justice.

This is a motion by the petitioner brought on by order to show cause for an order recognizing as valid and effective, nunc pro tunc, the mailing of assessment petitions to the Clerk of the Webster Central School District to review an assessment of real property for the year 1972--73 under Article 7 of the Real Property Tax Law (RPTL).

The petitioner commenced this proceeding on September 6, 1972 by service of the statutorily prescribed papers on the appropriate town officials as provided by RPTL Section 708, subd. 1, but failed to mail a copy of the petition and notice within ten days from the date of such service to the Clerk of the School District in which the real property is located, as provided in subd. 2 of Section 708 (now subd. 3 by L.1973, c. 31). The petitioner, however, in forwarding payment of the 1972--73 Webster Central School District real estate taxes to the Receiver of Taxes did so under protest and stated that it commenced legal action to review the assessment.

The petition and notice for the year in issue was mailed on September 7, 1973 to the Clerk of the School District, together with petitions and notices for a similar proceeding which was commenced for the 1973--74 tax year in which the School District has not intervened. All the proceedings were consolidated for trial before the same referee by an order dated October 23, 1973.

Section 708, subd. 3 (formerly subd. 2) provided that the mailing of a copy of the petition and notice to the clerk of a school district shall not thereby be deemed to have made it a party to the proceeding. In Magee v. Board of Assessors of Town of Nelson, 49 Misc.2d 499, 500, 268 N.Y.S.2d 61, 62, affd., 24 A.D.2d 1045, 265 N.Y.S.2d 618, the court in denying motions of the town board of assessors to dismiss a petition in Article 7 proceedings on the ground that they were not timely served on the clerk of the school district said: 'The purpose of section 708(2) of the Real Property Tax Law is to give notice to such a district that a review of an assessment made is being sought and that in due course an application for partial refund may be made. In the opinion of this Court, failure to give notice to the school district, within the strict statutory time limit, does not affect the Court's jurisdiction over the respondent or of the subject matter in these proceedings.'

In North Crystal Gardens, Inc. v. Bell, 44 Misc.2d 449, 254 N.Y.S.2d 64, the Commissioner of Taxation of the City of Corning moved to dismiss an Article 7 proceeding on the ground that the petitioner failed to mail a copy of the petition and notice to the clerk of the school district within ten days from the date of its service on him. The court held that the school district does not become a party to the proceeding by service of the notice and petition and permitted a late mailing to the clerk of the school district.

Raymond v. Honeywell, 58 Misc.2d 903, 297 N.Y.S.2d 66, involved a motion by the school district to intervene in an Article 7 proceeding. In commenting on Section 708(2) the court said that the school district had a real and substantial interest in the outcome of the proceeding. In granting the motion the court held that although the statute does not provide for its automatic joinder, the notice provision of Section 708(2) permits it to determine 'in each instance whether its interest will best be served by intervention or not' (p. 904, 297 N.Y.S.2d p. 67).

In Rapone v. Shokey, 43 Misc.2d 87, 89, 250 N.Y.S.2d 348, 350, the court stated that the failure to mail copies of the petition and notice to the clerk of the school district was not a jurisdictional defect but merely an irregularity, and concluded 'that the failure to mail the petition and notice is an irregularity which does not affect the jurisdiction obtained by due service in accordance with requirements of subd. 1 of Section 708 of the Real Property Tax Law.

'This conclusion is supported by the provisions of Sec. 702(3), Sec....