In a decision issued on June 5, 2012, the Court of Appeals ruled that the failure to serve a petition initiating a tax certiorari proceeding upon the school district within which the tax parcel at issue lies warrants dismissal, regardless of whether the school district has been prejudiced by this error. The case is reported as Matter of Board of Managers of Copley Court Condominium v. Town of Ossining.
The Court resolved an issue previously addressed in series of competing decisions issued by New York appellate courts as to whether the failure to serve a school district with a copy of the petition filed in a tax certiorari proceeding pursuant to § 708(3) of the Real Property Tax Law (the “RPTL”) mandates dismissal. Section 708(3) of the RPTL requires that, upon initiation of a tax certiorari proceeding, the petitioner-taxpayer mail a copy of this pleading to the superintendent of the school district within which the property at issue is located. In the Copley Court Condominium case, the petition was inadvertently mailed to the wrong school district. Once this error came to light, the affected school district intervened and moved to dismiss.
The Court of Appeals summarily ruled that the provisions of § 708(3) of the RPTL are mandatory in nature and permit a taxpayer-petitioner to excuse the failure to notify the appropriate school district only upon a showing of “good cause.”
The Court ruled that the absence of prejudice upon the school district is not tantamount to “good cause” and will not excuse this procedural shortcoming.
Although the Copley Court Condominium case provides welcome clarification to school districts that have encountered this issue, an additional issue remains unresolved. In particular, the New York Civil Practice Law and Rules permit a party to recommence a legal proceeding when it is dismissed for reasons other than a “voluntary discontinuance, a failure to obtain personal jurisdiction of the defendant, dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits on the merits.” New York courts have not definitively ruled whether the dismissal of a tax certiorari proceeding on account of the failure to abide by RPTL §708(3)’s service requirements falls within one of these categories. In fact, the Appellate Division, Second Department in Consolidated Edison Co. of New York, Inc. v. Assessor of Pleasant Valley and Wyeth Holdings Corp. v. Assessor of Clarkstown reached differing results on this very question. Thus, the issue of whether a petitioner-taxpayer may recommence a proceeding if it is dismissed due to defective service under RPTL § 708(3) remains open until addressed by the Court of Appeals.
