Matter of Waldbaum's 122, Inc. v. Bd. of Assessors of the City of Mount Vernon

Jan 18, 1983
Versions:58 N.Y.2d 818
445 N.E.2d 646
459 N.Y.S.2d 263
1983 N.Y. LEXIS 2816

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioner’s failure to file a note of issue within four years from service of the 1977 petition or to obtain a stipulation or court order within the four-year period extending its time for filing required dismissal of that petition. Not only is section 718 of the Real Property Tax Law phrased in mandatory terms (“Unless a note of issue is filed * * * an order dismissing the petition shall be entered without notice and such order shall constitute a final adjudication of all issues raised in the proceeding” [emphasis supplied]) (see Matter of King v Carey, 57 NY2d 505; Gonkjur Assoc. v Abrams, 57 NY2d 853; Matter of Albano v *820 Kirby, 36 NY2d 526), but also the statute was a re-enactment of a previously repealed provision and was enacted “to restore the four year limitation for judicial proceedings to review tax assessments,” and to require that “some action must be taken during the four-year period to indicate that the issues are still alive” (Memorandum of Assemblyman Milton Jonas, sponsor of the bill, NY Legis Ann, 1976, p 346), in order to relieve court congestion and to reduce the fiscal problems occasioned by the pyramiding of review proceedings on the same parcel that otherwise occurred (id.). Section 718 of the Real Property Tax Law is, therefore, distinguishable from former rule 302 of the Rules of Civil Practice (now CPLR 3404) considered in Marco v Sachs (10 NY2d 542) in that both its wording and its legislative history demonstrate the intention, not found in Marco, “to have the rule rigidly applied irrespective of any and all circumstances” (10 NY2d, at p 550). Nor could settlement discussions conducted after the four-year period had elapsed without either filing or an extension revive petitioner’s right to proceed on the abandoned petition.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Simons taking no part.

On review of submissions pursuant, to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.