11 Misc. 2d 37 | N.Y. Sup. Ct. | 1958
This is a proceeding to review certain tax assessments for the year 1956-1957 upon real property situated in the town of Brookhaven upon the ground of illegality.
The respondent board moves to dismiss the petition on the ground that the petition is insufficient in law in that the petitioners failed to allege that they made timely complaint to the respondent board to correct such assessments as required by section 290-c of the Tax Law, and upon the further ground that the proceeding was not commenced within the time prescribed by section 290-a of the Tax Law.
The affiant in the affidavit in support of the motion proceeds under the mistaken impression that the petition is directed to the assessments for the year 1957-1958 as is indicated by the matters contained in said affidavit. However, his affidavit in reply to the answering affidavit of the petitioners does come to grips with the situation as it pertains to the assessments for the year 1956-1957. Accordingly, the motion will be deemed to be directed to such period. This latter affidavit stands uncontradicted and shows that neither the petitioners nor their duly authorized
On the other hand the petitioners contend that the failure to appear on grievance day and protest the assessments is not a bar to the maintenance of proceedings such as. this when the assessments are attacked as void for lack of jurisdiction for the reason that the issue of jurisdiction can be raised at any time. While this is a true statement of the law, it has no application to the instant situation. The allegations of the petition do not attack the actions of the board as void for lack of jurisdiction. Indeed, it could not. Allegedly, the petitioners own some real property in the town of Brookhave-n which is subject to taxation and concededly the board has the power to assess, it for the purpose of taxation. The petition charges illegality as the reason for seeking- the relief prayed for in this, proceeding and goes on to allege facts which, if proved, would tend to. show that petitioners were assessed' for more property than they actually own.
As to the, second ground of respondent’s motion, it. appears that the- affidavit of service of the moving papers which initiated this proceeding shows that such papers were served on the respondent board on August 30, 1957. This being so, the- proceeding was commenced some- 13 months after the completion and filing of the assessment rolls for the. tax year 1956-1957, which was more than the 30 days allowed by statute.
The petitioners assert that the 30-day limitation does not apply here because the assessments- were jurisdictionally- void.
Their only quarrel is with the alleged illegal means used by the board in exercising the powers delegated to it by statute.
It is obvious that this proceeding is in form and substance one brought under article 13 of the Tax Law. In fact, this is the only remedy open to the petitioners under the circumstances set forth here. Such being the case, both sections 290-a and 290-c of that law must be complied with. Neither section has been complied with. The matter contained in the petition is not a sufficient compliance with section 290-c and the statement in the answering affidavit does not amplify it. Furthermore, the proceeding was not commenced within 30 days after the final completion and filing of the assessment rolls.
Accordingly, the motion to dismiss the petition is granted.