To be Argued by:
STEPHEN DAVIS
Time Requested: 20 Minutes
(!tourt of l\pptala
~tutr nf Nrm Inrk
APL-2015-00159
WESTCHESTER JOINT WATER WORKS,
Appellant,
- against-
ASSESSOR OF THE CITY OF RYE,
Respondent,
- and-
RYE NECK SCHOOL DISTRICT,
Intervenor-Respondent.
BRIEF FOR APPELLANT
Of Counsel:
STEPHEN DAVIS
McCARTHY FINGAR LLP
Attorneys for Appellant
11 Martine Avenue
White Plains, New York 10606
(914) 946-3700
Appellate Division - Second Department Docket No. 2012-09037
Westchester County Clerk's Index Nos. 18050102, 17029/03, 17017/04,
18636105, 20599/06, 20880107, 22195/08, 23918/09, 25259/10
Appeal Press, LLC - (914) 761-3600 (212) 267-6602 (16001)
Disclosure Statement. subsection 500.1(0
Petitioner-Appellant is a public benefit corporation solely owned and controlled
by three municipal corporations, to wit: The Town of Harrison, the Town of
Mamaroneck and the Village of Mamaroneck, acting through their respective chief
elected officials constituting its Board of Trustees.
Status of Any Related Litigation
The tax certiorari proceeding against the Assessor of the City of Rye in regard to
tax assessment lot 200-1-10 located in the Rye City School District continues. It
awaits restoration to the trial calendar. Intervenor-Respondent is not a party to
said proceeding. Said proceeding had been impliedly severed from the proceeding
in regard to tax assessment lot 200-1-9 located in Intervenor-Respondent's Rye
Neck School District. These tax lots are separately assessed, with the proceeding
in regard thereto standing independently. The instant proceeding in regard to lot
200-1-9 has been dismissed in favor of both Intervenor-Respondent and
Respondent, and represents a final resolution.
Table of Contents
Page
Disclosure Statement Pursuant to subsection 500.1(t) . . . . . . . . . . . . . . . . . . . . i
Statement of Status of Related Litigation ............................. .
Table of Contents ............................................... .
Table of Cases and Authorities ..................................... .
Questions Presented ............................................. .
Statement Showing Court's Jurisdiction to
Entertain Appeal and the Questions Raised ........................ .
Preliminary Statement ............................................ .
Statement of Facts ............................................... .
POINT I RESULTANTSUPERFLUOUSNESSOFTHE
UNPERFORMED CONDITION STATUTE
CONSTITUTES AN ACCEPTED INTRINSIC
CONSEQUENCE OF RECOMMENCEMENT
POINT II DISMISSAL ON THE MERITS PERTAINS TO LACK
OF ADEQUACY OF THE CAUSE OF ACTION, NOT TO
RESULTANT RENDERING A STATUTE SUPERFLUOUS
..
11
IV
V
.
VI
1
2
4
WITH THE GRANT OF RECOMMENCEMENT ........ 8
POINT III THE EXPRESSION, UNLESS EXCUSED FOR GOOD
CAUSE SHOWN, REPRESENTS EXTENSION OF
LENIENCY, RATHER THAN A BASIS FOR DENIAL
OF CPLR 20S (a) RECOMMENCEMENT ..•.•.•.•..... 11
CONCLUSION THE APPELLATE DIVISION DECISION
MUST BE REVERSED WITH
RECOMMENCEMENT GRANTED. . . . . . . . . . . . . .. 13
ii
Addendum
Preliminary Appeal Statement, pp 1 & 5 ......................... ADDM-I
Briefing Scheduling Letter, pl ................................ ADDM-3
III
TABLE OF CASES AND AUTHORITIES
Cases
Board of Assessment Review for Town of Richmond,
~ ¢
13 N.Y.3d 176 (2009)
Fleming v. Long Island Railroad,
72 N.Y.2d 998 (1988)
10
4, 5. 8, 11
Matter ofBd olManagers of Cop lev Court Condominium v. Town olOssining,
19 N.Y.3d 869 (2012) 7
Matter ofBrookview Apartments v. Stuhlman,
278 A.D.2d 825 (3rd Dept. 2000) 6
Matter of Consolidated Edison Co. v. Assessor of Town of Pleasant Valley, -x-
~ p •
82 A.D.3d 761 (2nd Dept. 2011)
Matter of Cornwall Yacht Club v. Assessor,
110 A.D.3d 1070 (2nd Dept. 2013) 6, 7
Matter of MM I! LLC v. Lavancher, Assessor of the Town of Onondaga, •
72 A.D.3d 1497 (4th Dept., 2010) 12
Matter of Morris Investors v. Commissioner olFinance olNYC,
69 N.Y.2d 933, 935 (1987) 2,4, 5, 8, 11
Matter of Wyeth Holding Corp. v Assessor of the Town of Orangetown,
84 A.D,3d 1104, 1107 ((2nd Dept. 2011) 1,4,5,6, 8, 9, 10
Yonkers Contr. Co. v. Port Authority,
93 N,Y.2d 375 (1999)
iv
7,8,9
Statutes
CPLR 205 (a) 1,3,4,5,10,11,12
RPTL §708 (3) 1, 2, 3, 6, 9, 10, 11, 12
QUESTIONS PRESENTED
1. Does resultant superfluousness of the unperformed condition statute after
CPLR 205 (a) recommencement, constitute an accepted intrinsic consequence of
recommencement?
The foregoing should be answered in the affirmative.
2. Is the potential for rendering superfluous a condition subsequent statute by the
granting of recommencement, an act relating to the merits of a cause of action
such that it justifies "dismissal upon the merits?"
The foregoing should be answered in the negative.
3. Does the expression, "unless excused for good cause shown," represent
extension of leniency, rather than serve as a basis for denial of CPLR 205 (a)
recommencement relief?
The foregoing should be answered in the affirmative.
v
Statement Showing Court's Jurisdiction to
Entertain Appeal and the Questions Raised
Showin& of Jurisdiction to Entertain Appeal
This Court has jurisdiction of the proposed appeal pursuant to CPLR
§5602(a) upon permission of this Court, where the appeal as to which permission
to appeal is sought is in an action originating in the Supreme Court, and the sought
appeal is from an order of the Appellate Division which finally determines the
action and which order of the Appellate Division is not appealable as of right.
This Court granted such permission by its Order Decided and Entered June 11,
2015 (CA-2).
This action originated in the Supreme Court, Westchester County, which by
Decision/Order dated July 24, 2012 dismissed the complaint, and which dismissal
the Appellate Division affirmed by Decision and Order dated September 17, 2014,
as well as reversing the lower court which had denied to the City of Rye the same
dismissal of the proceedings as it had granted to Intervenor Rye Neck School
District regarding Parcel 200.00-1-9 separately assessed and wholly located in
such school district (CA-5, A-23, A-70, A-I00, A-160, A-169). Please see
foregoing Exhibit (A-169) for a graphic portrayal of the separateness of the pipes
constituting Parcel 200-1-9, the parcel which is the subject of this tax certiorari
VI
proceeding here, dismissed both as to Intervenor-Respondent and Respondent
City.
The other separately and independently assessed tax parcel, Parcel 200-1-10
is located in the Rye City School District, and the proceeding with respect thereto
continues (CA-5). Such complete dismissal pertaining to such independent tax
Parcel 200.00-1-9 located in the Rye Neck District, as to which a separate tax
certiorari proceeding initially could have been brought, constitutes an implied
severance thereof and a final determination of the action regarding the instant
parcel 200.00-1-9 located in the Intervenor-Respondent's school district.
Ambiguity presented itself in regard to second Ordered paragraph of the
Order granting leave to appeal. As specified in the Preliminary Appeals
Statement, it was unclear whether this appeal extended to the Respondent, City of
Rye, with the issue limited to the law as it pertains to just Parcel 200-1-9 located
in the Rye-Neck school district (A-169) or whether the City of Rye was dropped
as a party. A decision to the latter effect would leave Appellant with uncertainty,
but remediable at least in part, regarding the process for recommencement should
reversal be granted.
vii
In the Preliminary Appeals Statement (copy of pertinent pp 1 & 5 provided
in Addendum to Brief), Appellant therein called to the Clerk's attention the
foregoing ambiguity and the applicability of the implied severance doctrine. The
Doctrine was discussed in the endorsement made on Preliminary Appeals
Statement, with the citation of pertinent cases, along with the foregoing facts
demonstrating the independent assessment of the Rye Neck parcel and that the tax
certiorari proceeding could have been brought separately with respect to it. The
submission thereby demonstrating that the dismissal vis-a-vis Parcel 200-1-9
constituted a final determination of an independent cause of action, thereby
constituting implied severance and justifying jurisdiction of this Court. The Clerk
responded by designating in his Briefing Scheduling Letter of June 26, 2015
Respondent City of Rye as a Respondent. Appellant incorporates into the
Addendum hereto the 1 st page of the Clerk's Scheduling Letter to that effect.
No appeal to this Court may be taken as of right, as none of the criteria
enumerated in CPLR §5601 exist. In further regard to this Court's jurisdiction of
the motion for leave to appeal which lays the foundation for the appeal itself,
CPLR §5513(b) provides that where a movant timely moves for leave to appeal
to the Court of Appeals at the Appellate Division, and upon denial, the movant
then timely makes a motion to the Court of Appeals for the same relief within 30
Vlll
days after service of the Appellate Division's order or decision of denial, with
notice of its entry, the Court of Appeal may upon motion therefor, grant
permission to appeal. Petitioner-Appellant has complied.
As stated above, Appellant was served with a copy of the Appellate
Division's Decision and Order dated September 17,2014 on September 30,2014.
Appellant served its motion to the Appellate Division for leave to appeal to the
Court of Appeals on October 10, 2014, returnable November 7, 2014, and
adjourned to November 21, 2014. The Appellate Division rendered its Decision &
Order on Motion on March 10,2015. Not having been served with copies thereof,
with notice of entry, Appellant served copies of said Decision & Order on Motion
of the Appellate Division dated March 10,2015, with notice of entry, upon both
Respondents on April 7, 2015. Appellant made its motion for leave to appeal to
the Court of Appeals on April 7, 2015, a date within the 30 day period allowed for
the making of such motion, and in any event, within 30 days from March 10, 2015,
the date of the Appellate Division rejection.
Showing ofJ urisdiction to Review Questions Raised
Appellant raised all issues by filing Notice of Appeal to the Appellate
Division (A-2) relating to "each and every part" of the motion court's
IX
Decision/Order (A- 5), which includes appeal from the motion court's specific
ruling denying the cross-motion for recognition of Petitioner-Appell ant's CPLR
205(a) right to recommence (characterized by the court as seeking leave to
recommence) (A-IS), citing therein and relying upon Wyeth Holding Corp v.
Assessor v. Town of Orange town, supra. Therein, the motion court illogically
concluded that potential for rendering superfluous the "good cause shown" aspect
of RPTL §70S (3), constitutes a dismissal upon the merits. Essentially, the
motion court's Decision/Order, with its reliance upon Wyeth Holding Corp.,
supra, represented the first time the foregoing specified issues arose at the motion
court level. As further stated and demonstrated above, this Court granted leave to
appeal after appropriate completion of all the processes.
Appellant tangentially addressed at the motion court level the illogically
conceived dismissal on the merits issue in Appellant's Opposing/Moving
Affidavit, paras. 20,24 & 25 (A-69, A-71), and subsequently, directly at the last
paragraph of Davis letter dated 4/12/2012 (A - 132-134), calling to the court's
attention the apparent overruling of the 2011 Wyeth Holdings, supra, case by
subsequent denial of leave to appeal to the school district in the diametrically
opposed Matter of Consolidated Edison Co. v. Assessor of Town of Pleasant
x
Valley, 82 A.D.3d 761 (2nd Dept. 2011). The latter constitutes a case in which the
same Department of the Appellate Division had affirmed recommencement in a
RPRL §708 (3) dismissal situation.
Xl
Preliminary Statement
The Appellate Division affirmed the lower court's denial ofCPLR 205 (a)
recommencement relief from the RPTL §708 (3) dismissal of the instant nine
annual tax certiorari proceedings by reason of un-excused failure to make post-
commencement mailings to the Intervenor-Respondent's Superintendent of
Schools of copies of the tax certiorari papers (CA-5). It extended the dismissal to
the Respondent City on its Cross-Appeal (CA-5). The Decision, in actuality,
imposed a dismissal with prejudice in reliance upon a case l stating that the
dismissal constituted a "dismissal upon the merits," since to do otherwise would
render superfluous the "unless excused for good cause shown" aspect of RPTL
Appellant conceded lack of "good cause shown" on its motion for
permission to appeal, and now, as the law of this case, reaffirms that concession
for this appeal. This appeal, therefore, relates not to the dismissal ruling governed
by absence "of good cause shown," but rather to the denial of the cross-motion
seeking recognition ofCPLR 205 (a) recommencement relief, irrespective oflack
of "good cause shown" for not making the condition subsequent delivery.
I Matter of Wyeth Holding Corp. v Assessor ofthe Town of Orange town,
84 A.D.3d 1104, 1107 «2nd Dept. 2011); discussed infra POINT I.
2 Id.
Superfluousness of the unperformed statutory requirement represents an
intrinsic feature of recommencement having "its roots in the distant past." 3
Moreover, "excuse for good cause shown" for failure to perform a condition
subsequent bears no relationship to the merits, nor to the necessary ingredients of
a cause of action. Accordingly, Appellant takes exception to the Appellate
Division's conception that "a dismissal pursuant to RPTL §708 (3) operates as a
dismissal upon the merits" (CA-5).
Statement of Facts
These proceedings involve nine (2002 - 2010) tax certiorari proceedings (A-
62) involving water supply (predominantly pipes) (A-100, 139). Specifically, the
proceedings and the dismissal relate only to assessment parcel 200-1-9 located
within the Rye Neck School District (Intervenor-Respondent) (CA-5, A-23, A-70,
A-100), one of the two school districts geographically located within the City of
Rye. The severed proceedings continue against the Rye City School District and
the Respondent City of Rye with respect to the other parcel, independent severed
assessment parcel 200-1-10, located within the other school district, the Rye City
School District (not part of this appeal) (CA-5).
3 Matter of Morris Investors v. Commissioner of Finance of NYC, 69 N.Y.2d 933, 935
(1987).
-2-
In each of the years at issue, absent "good cause shown" (CA- 5), Appellant
failed to mail copies of the tax certiorari papers to the Superintendent of Schools
of Intervenor-Respondent within 10 days of commencement of the respective
proceedings, as required by RPTL §708 (3) (A-24). RPTL § 708 (3) further
provides that failure to comply "shall result in the dismissal of the Petition, unless
excusedfor good cause shown [italics provided]."
Upon learning of such failure in delivery of the tax certiorari papers,
Intervenor-Respondent and then Respondent moved for dismissal (A-20, A-97).
Appellant, in response, both opposed the motions and cross-moved for recognition
of its CPLR 205 (a) six month right to recommence if the foregoing dismissal
motions were granted (A-60). The Appellate Division sustained RPTL § 708 (3)
dismissal on the basis of lack of "good cause shown" for non-delivery to the
Superintendent of Schools (CA-5) with respect to lot 200-1-9 only (CA-5), the
independently assessed tax lot situated in the school district of Intervenor-
Respondent (Rye Neck) (A-23).
Having sustained absence of "good cause shown, " the Appellate Division
sustained denial of CPLR 205 ( a) recommencement relief stating that "since a
dismissal pursuant to RPTL 708 (3) operates as a dismissal upon the merits, the
relief afforded by CPLR 205 (a) is unavailable." (CA-5) It founded its Decision
upon a false predicate, as argued herein, infra.
-3-
POINT I
RESULTANT SUPERFLUOUSNESS OF THE
UNPERFORMED CONDITION STATUTE
CONSTITUTES AN ACCEPTED INTRINSIC
CONSEQUENCE OF RECOMMENCEMENT
The Appellate Division rejected CPLR 205 (a) recommencement in
principal reliance upon Matter of Wyeth Holding Corp. v. Assessor of the Town of
Orangetown, 84 A.D.3d 1104, 1107 (2nd Dept 2011) and two other cases cited at
the Decision's last paragraph (CA-5). It erroneously concluded therefrom a
dismissal upon the merits (CA-5). Conversely, this Court consistently justifies
recommencement as the intrinsic and acceptable consequence of the process,
irrespective of consequent negation of the unperformed statutory condition.
In Fleming v. Long Island Railroad, 72 N.Y.2d 998 (1988), the plaintiff
failed to demand of the Railroad settlement in advance of suit, and to so plead, as
required by statute, with the statute imposing dismissal for failure, as here.
Likewise in Matter of Morris Investors v. Commissioner of Finance of NYC, ..
69 N.Y.2d 933 (1987), petitioner failed to perform the condition, to wit: payor
bond the disputed taxes prior to suit, and to so plead, as likewise required by the
pertinent statute in that case, with a like statutory imposed dismissal, as here.
-4-
In both cases, this Court dealt with the consequence of recommencement
rendering academic the foregoing condition and dismissal statues. In both cases,
this Court found the statute negating consequence an unavoidable factor of
recommencement. Succinctly, In Matter of Morris Investors, supra, p. 936, this
Court balanced the equities between permanent dismissal for a condition failure
and recommencement as follows:
"That the proceeding may have been defective for
failure to deposit or post a bond [here, failure to
mail] does not put it beyond the savings provision
of CPLR 205 (a). The statute by its very terms comes
into operation in instances where a proceeding has been
terminatedfor somefatalflaw [as here] unrelated to
the merits of the underlying claim. . ., [ emphasis
provided] and is to be liberally construed"
Fleming v. Long Island Railroad, supra, reiterated the recommencement
right, thereby likewise rendering superfluous the unperformed condition statute
(demand for settlement, and so pleading). As in the foregoing two cases decided
by this court, the termination of Appellant's assessment reduction claims likewise
were brought about "for some fatal flaw unrelated to the merits of the underlying
claim." Matter of Morris Investors, supra.
There exists no reported appellate case other than the instant and Wyeth,
supra, pertaining to rejection ofCPLR 205 (a) recommencement relief on the
-5-
basis of dismissal upon the merits as a consequence of rendering superfluous the
"unless excused for good cause shown" aspect of RPTL § 708 (3). The other two
cases besides Wyeth, supra, cited by the Appellate Division in justification of its
Decision (CA-5), although correct in their holding, are inapt to the proposition for
which cited.
Although at first glance it might appear that the first of the cited cases,
Matter of Cornwall Yacht Club v. Assessor, 110 A.D.3d 1070 (2nd Dept. 2013),
might relate to a recommencement motion, in reality it relates only to a prior
settlement judgment and to absence of "good cause shown" in the attempt of the
petitioner to reopen the case after it had been settled and reached judgment.
There, the school district moved to have stricken the refunding of the school tax
portion of the settlement judgment because it had not been afforded the §708 (3)
opportunity to participate. The petitioner cross-moved for relief from its mailing
failure or alternatively, leave to recommence.
In its decision, The Appellate Division never reached the recommencement
issue. It had become academic by reason of the prior judgment as to which
petitioner was a party, and served as a resolution upon the merits. Cf Matter of
Brookview Apartments v. Stuhlman, 278 A.D.2d 825 (3d Dept. 2000). The Matter
-6-
of Cornwall Yacht Club court held that lack of "good cause shown" for the failure
to deliver the tax certiorari papers to the superintendent of schools served as
sufficient basis for denying mailing failure relief, and concluded the case upon the
basis of the judgment's entry. The court never addressed the recommencement
issue as the case already had proceeded to a judgment in which the petitioner
participated, thereby representing a resolution upon the merits against petitioner.
In the remaining case cited, Yonkers Contr. Co. v. Port Authority,
93 N.Y.2d 375 (1999), although inapt to the Appellate Divisions's ruling, the cited
case had been dismissed not once, but twice upon its merits. The plaintiff had
failed to perform two independent acts constituting necessary ingredients of its
cause of action. Yonkers Contr., supra, unlike here, did not involve failure to
perform a condition devoid of relation to the cause of action, as here. Moreover,
since the cause of action had failed twice, this Court found it unnecessary to
comment upon rendering superfluous a related statutory limitation. POINT II
infra, further discusses Yonkers Contr, supra.
Matter ofBd of Managers of Copley Court Condominium v. Town of
Ossining, 19 N.Y.3d 869 (2012), likewise may not be cited for the proposition that
the lack of "good cause shown" results in a dismissal upon the merits. The Copley
-7-
Court Condominium decision makes no comment regarding the merits. It is not a
recommencement case, nor was recommencement sought. The decision merely
confirms lack of "good cause shown" as a basis for this Court to affirm dismissal
and the concomitant denial of the cross-motion for permission to make late service
upon the school district. This Court reiterated the stringent standards required to
"excuse/or good cause shown" which formed the basis for denial of the late
service cross-motion. That standard does not apply here where perceived fault is
accepted as intrinsic to recommencement. Fleming v. Long Island Railroad,
supra, and Matter of Morris Investors, supra
POINT II
DISMISSAL ON THE MERITS PERTAINS TO LACK
OF ADEQUACY OF THE CAUSE OF ACTION, NOT TO
RESULTANT RENDERING A STATUTE SUPERFLUOUS
WITH THE GRANT OF RECOMMENCEMENT
In contrast to the puzzling characterization of the dismissals as "on the
merits" in the instant case and Wveth, supra, Yonkers Contr. Co. v. Port Authority,
supra, illustrates a truly "on the merits" dismissal. There, this Court found two
bases for failure of the cause of action, to wit:
(a) The claimant-contractor had bound itself by contract to alternative dispute
resolution through its project's Chief Engineer. It failed to participate, and the
Chief Engineer's report determined the claim. This Court held that since the Chief
-8-
Engineer had already rendered his required decision in regard to the monetary
matters forming part of the claim (claimant's cause of action), recommencement
was unavailable as the claim had been determined upon its merits; and
(b) by the time claimant-contractor recommenced, its action was time barred by a
one year condition precedent for bringing suit against the Port Authority. The one
year limit represented a substantive condition included in the cause of action, and
not merely a statute of limitations which could be tolled. The Legislature provided
this condition as part of the consideration for the Authority's waiver of sovereign
immunity.
This case and Wyeth stand in sharp contrast to Yonkers Contr. Co. v. Port
Authority, supra dealing with the substance of the cause of action. Absence of
"good cause shown" for non-performance of the delivery of the tax certiorari
papers to the District Superintendent within 10 days subsequent to commencement
of the tax certiorari proceeding, neither by statute nor by common law, constitutes
an element of the tax certiorari claim. The RPTL §708 (3) delivery requirement
merely represents a condition subsequent unrelated in any substantive way to
entitlement to assessment reductions. Relief from non-performance of an act
outside the elements of the cause of action represents precisely the purpose of
CPLR 205(a). The Legislature and this Court favor affording claimants their day
-9-
in court for determination of cases upon their merits. See e.g. Matter of Garth v.
Board o/Assessment Review/or Town of Richmond, 13 N.Y.3d 176 (2009) and
POINT I, supra.
Wyeth. supra .. on its face demonstrates flawed logic. Without stating a basis,
the decision jumps to the conclusion that CPLR 205(a)'s potential for rendering
superfluous an element ofRPTL §703 (a) totally unrelated to elements of the
cause of action, somehow constitutes a dismissal on the merits. The Appellate
Division failed to make a link between the resultant superfluousness of the "good
cause shown" provision, and a deficiency or misstep that constitutes "dismissal
upon the merits;" a dismissal related to the substantive elements of the case. The
Appellate Division thus demonstrated a cardinal flaw of logic. It proved the
hypothesis, "dismissal upon the merits," by its preconceived conclusion, without
ever defining "merits."
-10-
POINT III
THE EXPRESSION, UNLESS EXCUSED FOR GOOD
CAUSE SHOWN, REPRESENTS EXTENSION
OF LENIENCY, RATHER THAN A BASIS FOR
DENIAL OF CPLR 205 (a) RECOMMENCEMENT
In characterizing "unless excused for good cause shown" as a mandate for
performance, in default of which, the loss ofCPLR 205 (a) recommencement
relief, the lower court mis-perceived the phrase as an absolute directive from
which it could dismiss with prejudice, calling it a "dismissal upon the merits." In
actuality, "unless excused for good cause shown" constitutes the extension of
leniency and not a basis for dismissal with prejudice.
"Good cause shown" constitutes the ftrst opportunity to recoup in the ftrst
instance from the failure, as opposed to mandatory dismissal without relief. The
applicable statutes in Fleming v. Long Island Railroad, supra, and Matter of
Morris Investors v. Commissioner a/Finance o/NYC, supra, called for mandatory
action, without "good cause shown" recoupment. The absence of the clause forced
the respective plaintiffs to CPLR 205 (a) recommencement relief, without initial
opportunity for attaining forgiveness. Despite the Legislature's offer of leniency
through "good cause shown" not available in Fleming and Morris, the Appellate
Division here, nonetheless wielded the olive branch as though it were a sledge.
-11-
Finally, Matter ofMM 1. LLC v. Lavancher. Assessor o/the Town of
Onondaga, 72 A.D.3d 1497 (4th Dept., 2010), a Fourth Department case, also
addressed failure to perform the RPTL §708 (3) delivery. The Fourth Department
confirmed CPLR 205 (3) recommencement. Of necessity, the petitioner there
failed in its excuse ''for good cause shown." If good cause had prevailed, the
court would not have granted dismissal, but would have permitted the school
district's participation. Hence, the case never would have reached
recommencement.
Confronted with lack of "good cause shown," as here, the Fourth
Department perceived no superfluousness issue, perceived the mistake as a
forgivable failure, and confirmed recommencement. Accordingly, unless reversal
occurs here, the necessarily always present lack of "good cause shown" where
dismissal is granted in RPTL §708 (3) situations, implies that now and henceforth,
such dismissals cannot expect the relief offered by CPLR 205 (a).
-12-
CONCLUSION
THE APPELLATE DIVISION
DECISION MUST BE REVERSED
WITH RECOMMENCEMENT GRANTED
Dated: White Plains, New York
August 6, 2015
-13-
Respectfully submitted,
McCarthy Fingar LLP
Attorneys for Appellant
11 Martine Avenue
White Plains, NY 10606
(914) 946-3700
NEW YORK STATE
COURT OF APPEALS
Preliminary Appeal Statement
Pursuant to section 500.9 of the Rules of the Court of Appeals
1. CAPTION OF CASE (as the parties should be denominated in the Court of Appeals):
STATE OF NEW YORK COURT OF APPEALS
WESTCHESTER JOINT WATER WORKS,
Petitioner-Appellant,
-against-
* ASSESSOR OF THE CITY OF RYE,
and
Respondent-Respondent,
RYE NECK SCHOOL DISTRICT,
Intervenor-Respondent-Respondent,
2. Name of court or tribunal where case originated, including county, if applicable:
Supreme Court, Westchester County
3. Civil index number, criminal indictment number or other number assigned to the matter in the
court or tribunal of original instance: 18050/02, 11029/03, 11011/04, 18636/05,20599/06,20880/01,22195/08,23918/09 & 25259/16
4. Docket number assigned to the matter at the Appellate Division or other intermediate
appellate court:~2~O.:....:12:.....;-9~O~37~ ____ _
5. Jurisdictional basis for this appeal:
~ Leave to appeal granted by the Court of Appeals or a Judge of the Court of Appeals
Leave to appeal granted by the Appellate Division or a Justice of the Appellate
Division
__ CPLR 5601 (a): dissents on the law at the Appellate Division
__ CPLR 560I(b)(I): constitutional ground (Appellate Division order)
__ CPLR 560 1 (b )(2): constitutional ground Uudgment of court of original instance)
__ ? CPLR 560 1 (c): Appellate Division order granting a new trial or hearing, upon
stipulation for judgment absolute
__ CPLR 5601 (d): from a final judgment, order, determination or award, seeking
review of a prior nonfinal Appellate Division order
__ Other (specify) ____________________ _
rt: As the Court would not intentionally impose confusion regarding upon whom to serve process should Petitioner-Appellant prevail on appeal
'LR 205 (a) recommencement), Appellant interprets the 6/11/2015 Leave to Appeal Decision's words, "Rye Neck Union Free School District,"
ntended to refer to the Rye Neck assessment parcel and not the District itself. So interpreted, both the Rye Neck School District and City of
! would remain as parties, with the City still available for service of process of the recommenced proceeding (school districts not proper party to
certiorari proceedings unless it elects to participate and hence. unavailable for service of process). Moreover, the doctrine of implied
erance governs finality of the dismissal vis-a-vis the City regarding the Rye Neck District assessment. See Orange and Rockland Uti/. v.
lVard Oil Co., 46 N.Y.2d 880,882; Ratka v. St. Francis Hosp., 44 N.Y.2d 604,609; In re Matter of Kelly. as Tax Commissioner, 21 N.Y .. 2d
i, 202; and dicta contained in Burke v. Crosson, 85 N.Y.2d 10, 16. The totally independent Rye Neck School District assessment parcel is
'Iuated separate and apart from the independently evaluated and assessed City of Rye School District assessment parcel (continued
ceeding). Indeed, the assessment contests for these two parcels could have been conducted in two separate tax certiorari proceedings
pellant's motion, p. 7). The Court thus must have intended to retain jurisdiction over the dismissed discrete Rye Neck overassessment claim
linst the City. Should doubt remain, perhaps the parties should be directed to address the jurisdiction issue in their respective appeal briefs.
ADDM-l
rfyes, specify:
a. the party who filed the motion or application: ___________ _
b. the return date of the motion: -------------------------------c. the relief sought: _________________________________ _
Are there any other pending motions or ongoing proceedings in this case? If yes, please
describe briefly the nature and the status of such motions or proceedings:. ____ ...,...-_
See footnote related to parties at bottom of 1st page should Clerk deem further action required.
12. Set forth, in point-heading fonn, issues proposed to be raised on appeal (this is a
nonbinding designation, for preliminary issue identification purposes only):
ISSUE I Does CPLR 205(a), the recommencement statute, provide relief from
non-performance of a condition statute (here RPTL 708 (3» despite the non-
performance rendering superfluous the condition statue's "good cause
shown" provision?
ISSUE 2 Is it flawed logic to rule that failure to comply with a statutory litigation condition
subsequent (here, RPTL 708 (3) constitutes a dismissal on the merits?
(use additional sheet, if necessary)
13. Does appellant request that this appeal be considered for resolution pursuant to section
500.11 of the Rules of the Court of Appeals (Alternative Procedure for Selected
Appeals)?
__ yes ~no
If yes, set forth a concise statement why appellant believes that consideration pursuant
to section 500.11 is appropriate (see section 5 OO.II [b 1): (Fill In on lines below)
14. Notice to the Attorney General.
Is any party to the appeal asserting that a statute is unconstitutional? ----"yes _X_no
If yes, has appellant met the requirement of notice to the Attorney General in section
500.9(b) of the Rules of the Court of Appeals? -yes __ no
5
ADDM-2
~~~
~o/~~aneI
~~~~de~~
McCarthy Fingar, LLC
Attn: Stephen Davis, Esq.
11 Martine Avenue, 12th Floor
White Plains, NY 10606
Shaw Perelson May & Lambert, LLP
Attn: Marc E. Sharff, Esq.
115 East Stevens Avenue
Valhalla, NY 10595-1203
~~~~
,gtJC~./~
~,~ ~~ ?,g,gtJ7-?CJ.95
June 26, 2015
Harris Beach, PLLC
Attn: Christopher Feldman, Esq.
445 Hamilton Avenue, Suite 1206
White Plains, NY 10601-1833
Re: Matter of Westchester Joint Water Works v Rye
APL-201S-001S9
Dear Counselors:
This letter acknowledges receipt and administrative review of appellant's
preliminary appeal statement. The appeal will proceed in the normal course of briefmg
and argument.
Briefing Schedule for AppeaJ
Appellant's brief and record material shall be served and filed by August 10, 2015.
Failure to comply with this due date or such due date as extended pursuant to section
500.15 of the Court of Appeals Rules of Practice (the Rules) shall subject the appellant to
dismissal of the appeal (see section 500.16[a] of the Rules). Appellant shall remit the fee
required by section 500.3 of the Rules (currently $315.00 in the form of an attorney's
check, certified check, cashier's check or money order payable to "State of New York,
Court of Appeals").
Respondent's and intervenor respondent's briefs and any supplementary record
material shall be served and filed by September 24, 2015. Failure to comply with this due
date or such due date as extended pursuant to section 500.15 of the Rules shall subject the
respondent and intervenor respondent to preclusion (see section 500.l6[b] of the Rules).
Appellant may serve and file a reply brief by October 9,2015.
ADDM-3