Owen v. Comstock

Order insofar as appealed from unanimously reversed on the law without costs, motion granted and petition dismissed. Memorandum: In this tax certiorari proceeding pursuant to RPTL article 7, respondent assessor appeals from that part of an order denying his motion to dismiss for petitioners’ failure timely to file proof of service pursuant to CPLR 306-b (a). Respondent filed the final 1994 assessment roll on July 1, 1994. Under RPTL 702 (2), petitioners had 30 days in which to commence this proceeding challenging the assessment. Petitioners timely commenced this proceeding on July 29, 1994 by filing the notice of petition and petition with the clerk of the court (see, CPLR 304; RPTL 704 [1]). Respondent was served on August 8, 1994, and the process server completed his affidavit of service two days later. At that point, pursuant to CPLR 306-b (a), petitioners had until August 15, 1994 to file proof of service with the clerk of the court. Petitioners failed to do so. On August 23, 1994, petitioners’ attorney unaccountably mailed the affidavit of service to the County Court Judge. Petitioners did not file the affidavit of service with the Yates County Clerk until October 25, 1994, over two months later. This proceeding must be deemed dismissed pursuant to CPLR 306-b (a). The statute provides, "If proof of service is not filed and there has been no appearance by the defendant within the time provided in this section for filing proof of service, the action or third-party action shall be deemed dismissed as to the non-appearing party with respect to whom no proof of service has been filed” (CPLR 306-b [a]; see, Matter of Bonez v Coombe, 228 AD2d 673; Cerrito v Galioto, 216 AD2d 265; Matter of Barsalow v City of Troy, 208 AD2d 1144, 1146). There is no merit to petitioners’ contention that respondent appeared in the 899 proceeding, let alone that he appeared by August 15, 1994 (see, CPLR 320 [a]; Agway, Inc. v Curtis, 195 AD2d 1077; 16 Lincoln Sq. Assocs. v Amrep Corp., 129 Misc 2d 697, 699; Simkins v Gruenspan, 118 Misc 2d 107, 109). (Appeal from Order of Supreme Court, Yates County, Falvey, J.—Dismiss Petition.) Present—Denman, P. J., Lawton, Fallon, Doerr and Balio, JJ.