*954Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered December 18, 2002 in a proceeding pursuant to RPTL article 7. The order granted the motion of respondents to dismiss the petition on the ground that the court lacks personal jurisdiction over them.
It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is denied and the petition is reinstated.
Memorandum: Petitioner sought to commence this tax certiorari proceeding with respect to real property it owned in respondent Town of Tonawanda by filing a notice of petition and petition in the Erie County Clerk’s Office pursuant to RPTL 704 and serving them, on respondents the same day. The notice of petition stated that the matter would be heard “on September 24[,] 2002, or on such other date as specified by the Court.” It is undisputed that the date set forth in the notice of petition was chosen by petitioner’s counsel. Once the notice of petition and petition were filed in the Clerk’s Office, a justice was assigned and a return date was set by court personnel. After learning of the correct return date, respondents moved to dismiss the petition on the ground that the failure to include the actual time and place of the hearing on the notice of petition, as required by CPLR 403 (a), constitutes a jurisdictional defect.
We conclude that Supreme Court erred in granting the motion and dismissing the petition. The failure to include a return date on a notice of petition is a jurisdictional defect warranting dismissal of the petition in a special proceeding (see CPLR 403 [a]; Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, 309 AD2d 1251 [2003], lv granted 1 NY3d 507 [2004]). Here, however, petitioner complied with the statute by including an appropriate return date, albeit a date that was changed once a justice was assigned by court personnel, and thus the notice of petition was not jurisdictionally defective (see Siegel, NY Prac § 553, at 913 [3d ed]). Any other interpretation of the statute would be patently unfair to a party attempting to commence such a proceeding. We note that CPLR 304 permits commencement of a special proceeding by filing the petition alone, and we invite the Legislature to consider amending RPTL 704 to permit commencement of a tax certiorari proceeding in the same manner.
*955All concur except Pine and Scudder, JJ., who dissent and vote to affirm in the following memorandum.