252 West 30th Street Realty Corp. v. Biderman

165 A.D.2d 759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 18, 1990
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Bruce Wright, J.), entered on or about September 14, 1989, which granted the respondents’ cross motion to dismiss the petition pursuant to CPLR 217 and 7804 (f) as time barred, unanimously affirmed, without costs and without disbursements.

Petitioner, the owner of premises located at 252 West 30th Street, New York, designated as block 779, former lot 71, commenced the underlying CPLR article 78 proceeding on or about March 31, 1989, seeking to annul respondents’ determination denying petitioner eligibility for tax abatement and tax exemption benefits pursuant to Administrative Code of the City of New York § 11-243. The petition was ultimately dismissed as untimely.

Dismissal was mandated since the proceeding was not instituted within four months of the respondents’ September 9, 1988 letter advising the petitioner that it was ineligible for tax abatement and tax exemption benefits. (CPLR 217; Matter of Edmead v McGuire, 67 NY2d 714, 716.) Petitioner’s communications subsequent to the September 9, 1988 denial merely constituted requests for reconsideration which could not serve to toll or revive the Statute of Limitations. (Gertler v Goodgold, 66 NY2d 946, 948.) Finally, contrary to petitioner’s contentions, service of a cross motion to dismiss the article 78 proceeding, in lieu of an answer, is expressly permitted by CPLR 7804 (f). (See, Matter of Rappo v City of New York Human Resources Admin., 120 AD2d 339, 342.)

Concur — Murphy, P. J., Ross, Carro and Rosenberger, JJ.