Orchard Heights, Inc. v. Yancy

Feb 4, 2005
Versions:15 A.D.3d 854
788 N.Y.S.2d 763
2005 N.Y. App. Div. LEXIS 1246

Appeal from an order of the Supreme Court, Erie County (David J. Mahoney, J.), entered May 13, 2004 in a proceeding pursuant to RPTL article 7. The order denied the motion of intervenor seeking dismissal of the petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed.

Memorandum: Supreme Court erred in denying the motion of Orchard Park Central School District to dismiss the petition in this proceeding commenced pursuant to RPTL article 7 to review petitioner’s 2003-2004 real property tax assessment. RPTL 708 (3) provides that “one copy of the petition and notice shall be mailed within ten days from the date of service thereof . . . to the superintendent of schools of any school district within which any part of the real property on which the assessment is to be reviewed is located.” It is undisputed that petitioner erroneously served the Clerk of the Schools, not the Superintendent. “Failure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown” (id.). “[T]here is no statutory exception with respect to the absence of prejudice” (Matter of Premier Self Storage of Lancaster v Fusco, 12 AD3d 1135, 1136 [2004]; see also Matter of Clay Dome & Golf Ctr. v Board of Assessors of Town of Clay, 300 AD2d 1092 [2002]). Because petitioner failed to comply with the mailing requirement of section 708 (3), and failed to make a showing of good cause, we reverse the order, grant the motion and dismiss the petition (see Premier Self Stor. of Lancaster, 12 AD3d at 1135). Present—Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.