New York Law Review

National Gypsum Co. v. Assessor of Town of Tonawanda, 1 N.Y.3d 682 (2004): Validity of Notice of Petition in Tax Certiorari Proceedings

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National Gypsum Co. v. Assessor of Town of Tonawanda, 1 N.Y.3d 682 (2004)

A notice of petition in a tax certiorari proceeding is not jurisdictionally defective if the petitioner includes a return date that is later changed by court personnel, provided the petitioner initially complied with statutory notice requirements.

Summary

National Gypsum Co. filed a tax certiorari proceeding, including a notice of petition with a return date. The court clerk subsequently changed the return date. The Town of Tonawanda moved to dismiss, arguing the original notice was defective because it contained a ‘fictitious’ hearing date, failing to comply with CPLR 403(a). The Supreme Court dismissed the petition, but the Appellate Division reversed. The Court of Appeals affirmed the Appellate Division, holding that the initial notice was jurisdictionally sound because it conformed to statutory requirements, and the subsequent change by court personnel did not invalidate it. The Court emphasized fairness to petitioners attempting to commence such proceedings.

Facts

National Gypsum Co. filed a notice of petition and petition on July 16, 2002, seeking a reduction in the tax assessment of its property in the Town of Tonawanda. The notice stated the matter would be heard on September 24, 2002, or on such other date as specified by the Court. After filing, the court clerk assigned a return date of August 28, 2002. The Town of Tonawanda found out about the change when it called the Erie County Clerk seeking details regarding the September 2002 return date.

Procedural History

The Supreme Court, Erie County, dismissed the petition. The Appellate Division, Fourth Department, reversed and reinstated the petition. The Appellate Division granted leave to appeal to the Court of Appeals and certified the question of whether its order was properly made. The Court of Appeals affirmed the Appellate Division’s order.

Issue(s)

Whether the notice of petition in a tax certiorari proceeding pursuant to RPTL article 7 was jurisdictionally defective where the petitioner included a return date that was later changed by court personnel.

Holding

No, because the petitioner fully complied with CPLR 403(a) by inserting a time and place for the hearing which conformed with the applicable statutory notice requirements; the subsequent change by court personnel did not invalidate the notice.

Court’s Reasoning

The Court of Appeals reasoned that RPTL 700(2) authorizes special proceedings in tax certiorari matters, and RPTL 704(1) requires compliance with CPLR 403(a), which states that a notice of petition shall specify the time and place of the hearing. The Court distinguished this case from situations where the notice of petition failed to include any time and place for the hearing, which the Fourth Department had previously held to be a jurisdictional defect (citing Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor). The Court emphasized that National Gypsum’s notice did include a time and place that met statutory requirements. The court stated, “Any other interpretation of the statute would be patently unfair to a party attempting to commence such a proceeding.” The Court affirmed the Appellate Division’s decision, answering the certified question in the affirmative.

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