680 Realty Partners v. Commissioner of the Department of Finance

244 A.D.2d 288, 664 N.Y.S.2d 296, 1997 N.Y. App. Div. LEXIS 11881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1997
• Status: Published

Opinion

—Proceeding pursuant to New York City Charter § 171 (b) and CPLR article 78 to annul the determination of the New York City Tax Appeals Tribunal, dated April 26, 1996, that petitioner 680 Realty was engaged in the business of providing management services for Unincorporated Business Tax purposes, and is not entitled to any exemptions for income, including distributive share income and interest on loans and advances, unanimously dismissed as time-barred, without costs.

It is not disputed that, while the notice of petition was filed within the four-month limitations period, the petition itself was not filed until much later. Filing of the bare notice of petition in this case was insufficient to commence the special proceeding within the meaning of CPLR 304, such that the proceeding is time-barred (see, Perdum v Michael, 193 AD2d 440). Were we to reach the merits, we would confirm the Tribunal’s determination, deny the petition and dismiss the proceeding since the determination is supported by substantial evidence (see, e.g., Matter of Lakeview Futures v Department of Fin., 210 AD2d 31). Concur—Milonas, J. P., Rosenberger, Rubin, Williams and Colabella, JJ.