Mahoney v. Kraut

111 A.D.2d 685, 491 N.Y.S.2d 3, 1985 N.Y. App. Div. LEXIS 49948

Opinion

Order of the Supreme Court, New York County, Special Term, Part I (Kirschenbaum, J.), entered March 12, 1984, denying respondent-appellant’s motion for an order dismissing petitioners’ CPLR article 78 proceeding, is unanimously reversed, on the law, and the motion to dismiss granted, without costs and disbursements.

On May 4,1982, a determination of a tax deficiency was made against the petitioners in the sum of $6,955.59 by appellant New York City Department of Finance. The final determination, dated January 3, 1983, was mailed to petitioners on January 3, 1983 by certified mail, receipt of which was acknowledged on January 13; 1983. Petitioners then moved by an order to show cause, dated May 4,1983, for an order or judgment pursuant to CPLR article 78 directing a prompt judicial hearing to review the action of appellant. This petition should be dismissed as it was not timely commenced.

Administrative Code of the City of New York § T46-70.0 (a) provides that a taxpayer’s application to review a personal income tax determination made by an administrative agency shall be made “within four months after notice of the decision is sent by certified or registered mail to the taxpayer.” Petitioners commenced their proceeding four months and one day from the certified mailing date of the final determination and are, therefore, time-barred by section T46-70.0 (a) from making their application. Concur — Kupferman, J. P., Carro, Bloom and Rosenberger, JJ.