J. C. Penney Co. v. New York State Tax Commission

Appeal from an order of the Supreme [706] Court at Special Term (Conway, J.), entered April 24,1981 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the New York State Tax Commission imposing a tax deficiency on petitioner. In its effort to obtain review of adverse aspects of an October 17,1980 decision of the State Tax Commission, petitioner elected to proceed by obtaining an undertaking sufficient to secure the tax due and the costs and charges of the appeal proceeding. Although the notice of petition and the petition itself were timely served on February 13, 1981, because of a process server’s inadvertence the $65,500 undertaking, which had been acquired and approved by the court, was not served until March 3, 1981, more than two weeks after the expiration of the four-month Statute of Limitations. Special Term, relying on Matter of Cooper v Tully (79 AD2d 757), granted respondent’s motion to dismiss the petition. Cooper, which is not materially distinguishable and hence dispositive, noted that the provisions of section 1138 (subd [a], par [4]) of the Tax Law requiring payment of the tax assessed and the filing of an undertaking “are conditions precedent to petitioner’s CPLR article 78 proceeding and noncompliance deprives the court of jurisdiction” {id., at p 758), and that imperfect compliance with these provisions is not correctable within the proceeding itself, nunc pro tunc. Since the failure to timely file the required undertaking works to deprive the court of jurisdiction, it is of no consequence that the failure was occasioned by clerical error rather than by design. Order affirmed, without costs. Mahoney, P. J., Kane, Casey, Mikoll and Yesawich, Jr., JJ., concur.