Waldbaum's 122, Inc. v. Board of Assessors of City of Mount Vernon

90 A.D.2d 487, 454 N.Y.S.2d 554, 1982 N.Y. App. Div. LEXIS 18501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 1982
• Status: Published

Opinion

In a proceeding pursuant to article 7 of the Real Property Tax Law to review an assessment, for purposes of taxation, of certain real property for the tax year 1977/1978, the Board of Assessors and the Board of Assessment Review of the City of Mount Vernon appeal from an order of the Supreme Court, Westchester County (Sullivan, J.), entered July 8, 1982, which denied their motion to dismiss the proceeding on the ground that petitioner failed to file a note of issue within four years from the date of service of the petition (see Real Property Tax Law, § 718). Order reversed, on the law, with $50 costs and disbursements, motion granted and proceeding dismissed. The text, purpose and legislative history of section 718 of the Real Property Tax Law mandate the conclusion that petitioner’s failure to file a note of issue within four years of the date of service of the petition or to obtain within that period a stipulation or court order extending its time to file, resulted in a conclusive presumption that the proceeding had been abandoned. (See Matter of Kuhl v Hubbard, 93 Misc 2d 1058, 1063 [“automatic dismissal”]; Kohn v Myers, 266 F2d 353, 357.) Under the circumstances, the proceeding could not be revived or petitioner’s time extended by virtue of settlement discussions conducted after the four-year period had run. Titone, J. P., Weinstein, Gulotta and Niehoff, JJ., concur.