Opinion
August 21, 1989
Appeal from the Supreme Court, Nassau County (McGinity, J.).
Ordered that the order and judgment is modified, on the law, by deleting so much of the fourth and sixth decretal paragraphs thereof as dismissed that branch of the petition which was to compel correction of the 1985/1986 assessment roll and issuance of a corrected tax bill, and for such "further relief" as the court deems proper insofar as that branch of the petition is asserted against the Board of Supervisors of the County of Nassau and the Board of Assessors of the County of Nassau, and that branch of the petition is reinstated insofar as it is asserted against the Board of Supervisors of the County of Nassau and the Board of Assessors of the County of Nassau; as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the time for the respondents the Board of Supervisors of the County of Nassau and the Board of Assessors of the County of Nassau to serve an answer to the petition is extended until 30 days after service upon them of a copy of this decision and order, with notice of entry.
The antecedent factual and procedural history of this case is described in Corporate Prop. Investors v. Board of Assessors ( 153 A.D.2d 656 [decided herewith]) and Matter of Coliseum Towers Assocs. v. Livingston ( 153 A.D.2d 683 [decided herewith]).
The Supreme Court erred in dismissing so much of the instant petition as was to compel the the Board of Supervisors and the Board of Assessors of the County of Nassau (hereinafter the county respondents) to act upon the petitioner's application for correction of the 1985/1986 assessment roll and for issuance of a corrected tax bill (see, Matter of Coliseum Towers Assocs. v Livingston, supra). However, whether or not the petitioner herein is entitled to a tax refund cannot be determined at this juncture since the county respondents have not yet served their answer.
We find no merit to the county respondents' contention that the applicable four-month Statute of Limitations period began to run on August 1, 1985, when the assessment roll became final and that therefore this proceeding was untimely commenced. Where the relief sought is to compel a public body to perform a duty enjoined upon it by statute, the applicable four-month limitation period does not begin to run until the public body refuses to comply with the petitioner's demand to perform the duty in question (CPLR 217; see, Matter of O'Buck v. City of Yonkers, 2 A.D.2d 775). There is no indication in the record that the county respondents have affirmatively refused to comply with the petitioner's request. If there was, in fact, a refusal more than four months before commencement of the proceeding, the county respondents may plead it in their answer (see, Matter of O'Buck v. City of Yonkers, supra, at 776).
Insofar as the instant petition asserted a claim for relief against the Jericho Union Free School District No. 15, it was properly dismissed. Nassau County Administrative Code § 6-26.0 (b) (3) (c) (L 1948, ch 851, § 2) relieves the school districts from liability for tax refunds (see, Corporate Prop. Investors v Board of Assessors, supra; see also, Vantage Petroleum v. Board of Assessment Review, 91 A.D.2d 1037, 1038-1039, affd 61 N.Y.2d 695, citing Matter of Sperry Rand Corp. v. Board of Assessors, 77 A.D.2d 822).
The remaining contentions of the parties are either without merit or need not be addressed in light of our determination. Lawrence, J.P., Rubin, Sullivan and Balletta, JJ., concur.