The Matter of Westchester Joint Water Works v. Assessor of City of Rye

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 77
In the Matter of Westchester
Joint Water Works,
Appellant,
v.
Assessor of City of Rye,
Respondent;
Rye Neck Union Free School
District,
Intervenor-Respondent.
(And Other Proceedings.)

Stephen Davis, for appellant.
Marc E. Sharff, for intervenor-respondent.
Darius P. Chafizadeh, for respondent.

FAHEY, J.:
This appeal presents the question whether a proceeding
dismissed for an unexcused failure to comply with the mailing
requirements of Real Property Tax Law (RPTL) § 708 (3) may be
recommenced pursuant to CPLR 205 (a). We conclude that it may

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not.
Facts and Background
Petitioner commenced nine separate tax certiorari
proceedings against respondent Assessor of the City of Rye (City)
challenging the real property tax assessments for each tax year
from 2002 through 2010 with respect to two parcels owned by
petitioner. The parcels are respectively assigned tax
identification numbers 200-1-9 (Lot 9) and 200-1-10 (Lot 10), and
each such parcel contains what the record characterizes as
“certain water pipes installed over several decades.” Lot 10 is
located entirely within the Rye City School District (City
Schools), and what apparently was timely notice of the subject
proceedings was provided to that school district. Here our
sights are set primarily upon Lot 9, which petitioner believed to
be located within the City Schools but which, in actuality, lies
within intervenor Rye Neck Union Free School District (District).
Pursuant to RPTL 708 (3), within 10 days of the service
of the notice of petition and petition on a municipality in a tax
certiorari proceeding, a petitioner must mail a copy of the same
documents to the superintendent of schools of “any school
district within which any part of the real property on which the
assessment to be reviewed is located.”1 That is, petitioner was

1
There are exceptions to the notice requirements
that do not apply to the District. Those exceptions
notwithstanding, RPTL 708 (3) specifically provides that

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required to mail a copy of the notice of petition and petition in
each such proceeding to the District’s superintendent within the
statutorily prescribed period. It is undisputed that petitioner
did not comply with those notice requirements before petitioner
and the City reached an agreement in principle resolving the
proceedings. It is similarly undisputed that, before that
tentative settlement was finalized, petitioner recognized its
error.
Petitioner subsequently notified the District of the
mistake, mailed to the District’s superintendent copies of the
petition and notice thereof in each of the subject proceedings,
and sought the District’s consent to the proposed settlement of
each such proceeding. The District, however, did not accommodate
that request and instead initiated motion practice that resulted
in two orders: one in which Supreme Court permitted the District

“one copy of the petition and notice shall be
mailed within [10] days from the date of
service thereof . . . to the superintendent
of schools of any school district within
which any part of the real property on which
the assessment to be reviewed is located . .
. . [T]he school district . . . shall [not]
thereby be deemed to have been made a party
to the proceeding. Proof of mailing one copy
of the petition and notice to the
superintendent of schools . . . shall be
filed with the court within [10] days of the
mailing. Failure to comply with the
provisions of this section shall result in
the dismissal of the petition, unless excused
for good cause shown.”

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to intervene in these proceedings (see 37 Misc 3d 238, 240-241
[Sup Ct, Westchester County 2012]), and a second in which Supreme
Court granted the District’s motion to dismiss the petitions with
prejudice for failure to comply with the mailing requirements of
RPTL 708 (3) and denied petitioner’s cross motion for leave to
recommence these proceedings pursuant to CPLR 205 (a)2 (37 Misc
3d at 242, 251). In the second order Supreme Court also denied
the City’s cross motion to dismiss the petitions against it on
the ground that the City lacked standing to seek such relief
inasmuch as it was the District, not the City, that did not
receive proper notice pursuant to RPTL 708 (3) (37 Misc 3d at
246-247, 251).
Only the second order was challenged on the cross
appeals, and the Appellate Division modified that paper

2
Pursuant to CPLR 205 (a),

“[i]f an action is timely commenced and is
terminated in any other manner than by a
voluntary discontinuance, a failure to obtain
personal jurisdiction over the defendant, a
dismissal of the complaint for neglect to
prosecute the action, or a final judgment
upon the merits, the plaintiff . . . may
commence a new action upon the same
transaction or occurrence or series of
transactions or occurrences within six months
after the termination provided that the new
action would have been timely commenced at
the time of commencement of the prior action
and that service upon defendant is effected
within such six-month period. . . .”

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essentially by denying the motion of the District insofar as it
sought dismissal of the parts of the petitions pertaining to Lot
10 (that is, the lot outside the District’s boundaries but within
the adjacent City Schools) and granting the cross motion of the
City insofar as it sought dismissal of the parts of the petitions
pertaining to Lot 9 (120 AD3d 1352, 1352-1353 [2d Dept 2014]).
Otherwise, the Appellate Division noted petitioner’s concession
that “it failed to give notice of the proceedings to the
Superintendent of the District pursuant to RPTL 708 (3)[] and
lacked good cause for [that error]” (120 AD3d at 1354) before
ruling that the parts of the petitions pertaining to Lot 9 were
properly dismissed based on “the lack of good cause excusing the
petitioner’s noncompliance” with that statute (id.). The court
also ruled that, “[s]ince a dismissal pursuant to RPTL 708 (3)
operates as a dismissal upon the merits, the relief afforded by
CPLR 205 (a) is unavailable” (120 AD3d at 1354). We subsequently
granted petitioner “leave to appeal as against the [District]”
only (25 NY3d 1098, 1098 [2015]), and we now affirm the Appellate
Division order insofar as appealed from, albeit for slightly
different reasons.
Analysis
A.
Our analysis begins with an historical review of RPTL
708 (3). As of January 1, 1996, RPTL 708 (3) provided that an
affected school board was a necessary party to a tax certiorari

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proceeding, and that a copy of the notice of petition and
petition commencing such a proceeding was to be mailed to the
clerk of that board (or, where a board did not employ a clerk, to
a trustee thereof). As it then was constituted, RPTL 708 (3)
exempted an affected school district from participation in such a
matter.
It was not long before the oddity in requiring school
boards, but not school districts, to be parties to tax certiorari
proceedings became problematic. In July 1996, the State Office
of Real Property Services noted the issue. It supported proposed
changes to RPTL 708 (3) intended to treat school boards and
school districts as one, and to provide school districts with
intervenor status in tax certiorari proceedings (see Bill Jacket,
L 1996, ch 503, at 7-12). In addition to resolving the paradox
in RPTL 708 (3), those changes were also intended to create “tax
savings to municipalities and school districts” -- ostensibly
through the reduction of litigation fees with respect to tax
certiorari proceedings --, and to “improve a district’s ability
to manage its tax liability” (Bill Jacket, L 1996, ch 503, at 7).
Such adjustments were suggested “at the request of the schools
themselves, in recognition of the fact that it would be time
consuming and expensive for schools to be made necessary parties
to all tax certiorari proceedings, both large and small” (id.).
In July 1996, the legislature amended RPTL 708 (3) by,
among other things, deleting the provision requiring a school

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board to be a necessary party to a tax certiorari proceeding and
implicitly providing intervenor status to school districts
affected by such matters (see L 1996, ch 503, § 1). To give
school districts a meaningful opportunity to participate in tax
certiorari proceedings, the legislature, subject to exceptions
inapplicable to this case, modified the notice requirements of
that statute so as to provide that a petitioner must mail the
notice of petition and the petition in such a proceeding to the
superintendent of an affected school district within 10 days of
the date of service of those papers. Significantly, the
legislature also strengthened compliance with those requirements;
under the “new” version of RPTL 708 (3), “[f]ailure to comply
with the provisions of [that] section shall result in the
dismissal of the petition, unless excused for good cause shown.”
B.
From that historical sketch we turn to the interplay of
RPTL 708 (3) and CPLR 205 (a), and specifically to the question
whether a proceeding dismissed pursuant to RPTL 708 (3) may be
recommenced under CPLR 205 (a).3 The issue has split the

3
As noted, RPTL 708 (3) provides that, in a proceeding
pursuant to RPTL article 7, where a petitioner fails to timely
mail copies of a petition and notice of petition to the
superintendent of an affected school district the petition shall
be dismissed, “unless [the error is] excused for good cause
shown.” CPLR 205 (a), in turn, permits recommencement of what
was a timely-commenced action within six months of a dismissal
based on anything other than (1) a voluntary discontinuance; (2)
failure to obtain personal jurisdiction over the defendant; (3)
failure to prosecute; or (4) a final judgment upon the merits.

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Appellate Division.
In Matter of MM 1, LLC v LaVancher (72 AD3d 1497, 1498
[4th Dept 2010]), the Fourth Department permitted recommencement
under CPLR 205 (a) of a proceeding dismissed pursuant to RPTL 708
(3) based on the petitioner’s failure to comply with the mailing
requirements of the latter statute. The Second Department took
the same approach in Matter of Consolidated Edison Co. of N.Y.,
Inc. v Assessor & Bd. of Assessment Review for the Town of
Pleasant Val. (82 AD3d 761, 763 [2d Dept 2011]). That court
concluded that the trial court properly granted a motion to
recommence pursuant to CPLR 205 (a) proceedings dismissed under
RPTL 708 (3) where the respondents suffered no prejudice as a
result of the petitioner’s failure to comply with the notice
provisions of the latter statute.
By contrast, in Matter of Wyeth Holdings Corp. v
Assessor of the Town of Orangetown (84 AD3d 1104 [2d Dept 2011]),
which was decided approximately 2 1/2 months after Consolidated
Edison Co. (82 AD3d 761), a different panel of the Second
Department refused to permit recommencement pursuant to CPLR 205
(a), ruling that “a dismissal pursuant to RPTL 708 (3) operates
as a dismissal upon the merits,” thereby rendering “the relief
afforded by CPLR 205 (a) . . . unavailable” (Wyeth Holdings
Corp., 84 AD3d at 1107 [internal quotation marks omitted]).
Matter of Cornwall Yacht Club, Inc. v Assessor (110 AD3d 1070 [2d
Dept 2013], lv denied 23 NY3d 904 [2014]) later yielded a similar

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result; in that case, the Second Department concluded that the
trial court providently exercised its discretion in denying the
petitioner’s cross motion seeking, among other things, leave to
recommence through CPLR 205 (a) proceedings dismissed for failure
to comply with the mailing requirements of RPTL 708 (3). The
order appealed from is consistent with Wyeth Holdings Corp. and
Cornwall Yacht Club, Inc. inasmuch as the Appellate Division
concluded that CPLR 205 (a) does not permit recommencement where
a proceeding is dismissed upon the merits pursuant to the RPTL.
In that court’s view, the terms of CPLR 205 (a), not those of
RPTL 708 (3), preclude recommencement here (see 120 AD3d at
1354).
C.
We conclude that recommencement of a proceeding
pursuant to CPLR 205 (a) is unavailable where, as here, such
proceeding is dismissed for an unexcused failure to comply with
the mailing requirements of RPTL 708 (3). Our determination is
based not upon petitioner’s failure to meet the requirements of
CPLR 205 (a), but upon our conclusion that RPTL 708 (3) does not
permit resort to the recommencement largess of the CPLR. The
reason for our conclusion is threefold.
First, because RPTL 708 (3) comprehensively addresses
the result where a proceeding is dismissed for failure to comply
with the mailing requirements of that section, a petitioner may
not reach outside of the RPTL to recommence such a proceeding.

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The language of RPTL 708 (3) providing that the dismissal for
failure to comply with the mailing provisions of that statute
shall be excused only “for good cause shown” reflects an intent
to permit a petitioner who has ignored the subject mailing
requirements to proceed only where the error is found to be
excusable.
In W.T. Grant Co. v Srogi (52 NY2d 496 [1981]) we
observed that, “[a]s a general rule, there should be no resort to
the provisions of the CPLR in instances where the [RPTL]
expressly covers the point in issue” (id. at 514; see CPLR 101
[“The (CPLR) shall govern the procedure in civil judicial
proceedings in all courts of the state and before all judges,
except where the procedure is regulated by inconsistent
statute”]). Although W.T. Grant Co. considered a question --
whether the petitioners were entitled to the discretionary
allowance authorized by CPLR 8303 (a) (2) -- unlike the main
issue on this appeal, its instruction applies equally here. RPTL
708 (3) expressly covers the result where a petitioner fails to
comply with the mailing requirements of that statute, that is,
dismissal in all such instances except where good cause is shown
for the error. Under the logic of W.T. Grant Co., the procedure
set forth in the RPTL controls. The recommencement remedy of
CPLR 205 (a) is unavailable to the petitioner.
Second, the conclusion that RPTL 708 (3) does not leave
room for operation of CPLR 205 (a) is consistent with the rule of

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statutory construction requiring that “effect and meaning must,
if possible, be given to [all parts of a] statute” (McKinney’s
Cons Laws of NY, Book 1, Statutes, § 98; see McKinney’s Cons Laws
of NY, Book 1, Statutes, § 144). RPTL 708 (3) requires that
where there is no “good cause” to avoid dismissal of a proceeding
commenced pursuant to RPTL article 7, that proceeding is finally
and conclusively dismissed. To construe RPTL 708 (3) otherwise,
that is, to conclude that CPLR 205 (a) permits recommencement of
a proceeding dismissed pursuant to RPTL 708 (3), would be to
render the “good cause” language in section 708 (3) ineffective
(see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104 [2001]
["Words are not to be rejected as superfluous where it is
practicable to give each a distinct and separate meaning"]
[internal quotation marks omitted]).
Third, the comprehensive reach of RPTL 708 (3) in this
setting is consistent with the legislative intent of that
statute. The development of RPTL 708 (3) shows that the
“current” version of that statute was structured so as to allow
school districts to avoid the expense of participating in every
tax certiorari proceeding. To further that aim, the legislature
included the provisions requiring that the superintendent of an
affected school district be timely notified of the commencement
of such a proceeding.
The mailing requirements ensure that an affected school
district is promptly notified of a tax certiorari proceeding so

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as to allow that district to determine whether to participate in
that matter and whether to reserve monies to satisfy an adverse
ruling. By the time it enacted the current version of RPTL 708
(3), the legislature had passed Education Law § 3651 (1-a) (see L
1988, ch 588, § 1), which authorizes the creation of a reserve
fund by a school district to pay judgments or claims in tax
certiorari proceedings. However, “the total of the monies held
in such reserve fund shall not exceed that amount which might
reasonably be deemed necessary to meet anticipated judgments and
claims arising out of such tax certiorari proceedings” (Education
Law § 3651 [1-a]).
By amending RPTL 708 (3), the legislature allowed
school districts to reserve funds to satisfy judgments in tax
certiorari proceedings. That right of reservation, however,
extended only to the extent funds reserved “might reasonably be
deemed necessary to [pay] anticipated judgments and claims”
(Education Law § 3651 [1-a]). A school district of necessity
must know of a proceeding in order to be able to estimate the
amount it is permitted to set aside. The notice requirements the
legislature included in RPTL 708 (3) act to balance the
strictures of the Education Law. A petitioner who ignores the
mailing requirements of RPTL 708 (3) and simultaneously denies a
school district the opportunity to economically address a tax
certiorari proceeding is not permitted to recommence a proceeding
dismissed based upon such noncompliance. To do so would be to

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undermine the aims of fairness and efficiency that prompted the
amendments to RPTL 708 (3) (see Bill Jacket, L 1996, ch 503, at
7).
Accordingly, the order of the Appellate Division,
insofar as appealed from, should be affirmed, with costs.
* * * * * * * * * * * * * * * * *
Order insofar as appealed from affirmed, with costs. Opinion by
Judge Fahey. Chief Judge DiFiore and Judges Pigott, Rivera,
Abdus-Salaam, Stein and Garcia concur.

Decided June 9, 2016

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