Opinion
June 1, 1978
Appeal from a judgment of the Supreme Court at Special Term, entered October 5, 1977 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, seeking to review respondent's determination relating to sales and use tax liability on the ground that the respondents did not receive 20 days' notice of the return date and the service was, for that reason, void. Petitioner, seeking review of a tax determination rendered on February 9, 1977, after a hearing, served a notice of petition and petition on respondent on June 7, 1977. The return day recited the notice of petition was June 24, 1977, only 17 days following the date of service. Respondents, on June 15, moved to dismiss on the ground that service was not made at least 20 days prior to the return date of the petition. The four-month Statute of Limitations expired June 9, 1977. On June 16, 1977, the Attorney-General was served with the petition and notice and at that time his office was orally advised that a new return date would be selected. On June 17, 1977 a hand delivered letter from petitioner advised the Attorney-General that July 22, 1977 was the new return date. Petitioner served an amended notice of petition on respondent and the Attorney-General on June 17 and June 20, 1977, respectively, with the new return date. Special Term dismissed the petition holding that the failure to give the 20-day notice in the original petition was a jurisdictional defect which could not be excused by the court in the exercise of its discretion. We are compelled to affirm on the authority of our prior decision holding that the failure to serve a petition and notice of petition at least 20 days prior to the return date is a jurisdictional defect (Matter of Blanchfield v Town of Halfmoon, 46 A.D.2d 930; CPLR 7804, subd [c]). Judgment affirmed, without costs. Sweeney, J.P., Staley, Jr., Larkin, Mikoll and Herlihy, JJ., concur.