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[*1]


Decided on January 4, 2006
Supreme Court, Rockland County

5447/05
David D. Hagstrom, Esq. Van De Water & Van De Water, LLP Attorneys For Intervenor 40 Garden Street
P.O. Box 112 Poughkeepsie, NY 12602 Eric A. Gess, Esq. Greco & Gess, P.C. Attorneys For Petitioner 11 North Airmont Road, 2d Floor Suffern, NY 10901 David C. Wilkes, Esq. Thomas A. McTique, Esq. Huff Wilkes, LLP Co-Counsel for Petitioner Talleyrand Office Park 200 White Plains Road Tarrytown, NY 10591 Dennis Michaels, Esq. Deputy Town Attorney Town of Orangetown Town of Orangetown Town Hall Orangeburg, NY 10962 Thomas A. Dickerson, J.
TAX CERTIORARI PROCEEDINGS: IMPROPER SERVICE No.2 [*2]
In this most recent exploration[FN1] of the requirements of proper service, and proof thereof, in tax certiorari proceedings, this Court is called upon by the Intervenor, The Pearl River Union Free School District [ " Pearl River School District " ] to issue an Order dismissing the tax certiorari petition filed by the Petitioner, 275 N. Middletown Rd., L.L.C. [ " the Petitioner " ] in 2005, because the
" petitioner failed to timely file proof of service of the petition on the Pearl River Union Free School District or the Commissioner of Finance of Rockland County, and/or failed to serve the Superintendent of Schools of the Pearl River Union Free School District as required by RPTL
708(3) "[FN2].
Intervenor's Contentions
It is the Intervenor's contention that " the Affidavits of Service show that the Town of Orangetown was served on August 2, 2005 and on August 5, 2005, the Notice of Petition and Petition in the instant matter were served by mail on the Pearl River School District ' and the Rockland County Department of Finance '. The failure to serve the Superintendent of Schools ' is a
ground for dismissal under RPTL 708(3)"[FN3].

Proof Of Service Untimely
The Intervenor also states that " the proof of service on Pearl River and the Commissioner of Finance was filed twenty-six (26) days after August 5, 2005, to wit: August 31, 2005. The failure to timely file the proof of the mailing of the Petition and Notice of Petition to the Superintendent of Schools and the Commissioner of Finance ( within ten days of service ) results in the dismissal of the Petition unless excused for good cause shown. There has been no request for an extension of time nor has any extension of time for compliance with this section been granted. There has been no motion to be excused from the failure to comply with the service and filing requirements under
RPTL 708(3) by the petitioner or its attorneys "[FN4].

[*3]Petitioner's Contentions
Petitioner contends that by Certified Mail, Return Receipt Requested, it mailed the Notice of Petition and Petition to the
" correct address at which the Superintendent of Schools is located for the Pearl River School District "[FN5], although it did not specifically state Superintendent of Schools on the Certified Mailing. The Return Receipt card was received back, signed by June Iamundo, listed among the School District personnel as being employed in " District
Administration ". " Ms. Iamundo is in fact the Secretary to the Superintendent of the Pearl River
School District - the proper party. "[FN6]. " There can be no credible dispute that the service of the Notice of Petition and Petition reached the party described in RPTL 708 and therefore service was made no different than any other mailed service to the Superintendent "[FN7].

Corrective Action Taken
Regarding the R.P.T.L.

Download 2006_50011.pdf

New York Law