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

New York Court of Appeals

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

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

CourtNew York Court of Appeals

DecidedJanuary 18, 1983

StatusPublished

Cited by22 cases

This text of 445 N.E.2d 646 (Matter of Waldbaum's 122, Inc. v. Bd. of Assessors of the City of Mount Vernon) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Matter of Waldbaum's 122, Inc. v. Bd. of Assessors of the City of Mount Vernon, 445 N.E.2d 646, 58 N.Y.2d 818, 459 N.Y.S.2d 263, 1983 N.Y. LEXIS 2816 (N.Y. 1983).

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Opinion

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57 NY2d 853; Matter of Albano v *820 Kirby, 36 NY2d 526), but also the statute was a re-enactment of a previously repealed provision and was enacted “to restore the four year limitation for judicial proceedings to review tax assessments,” and to require that “some action must be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.

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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.

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445 N.E.2d 646, 58 N.Y.2d 818, 459 N.Y.S.2d 263, 1983 N.Y. LEXIS 2816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-waldbaums-122-inc-v-bd-of-assessors-of-the-city-of-mount-ny-1983.

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