To be Argued by:
STEPHEN DAVIS
Time Requested: 20 Minutes
Q!nurt nf l\pprals
~tatr of Nrm Work
APL-2015-00159
WESTCHESTER JOINT WATER WORKS,
Appellant,
- against-
ASSESSOR OF THE CITY OF RYE,
Respondent,
- and-
RYE NECK SCHOOL DISTRICT,
Intervenor-Respondent.
REPLY 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,
18636/05,20599/06,20880107,22195/08,23918/09,25259/10
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.
Table of Contents
Page
Disclosure Statement Pursuant to subsection 500.1(f) . . . . . . . . . . . . . . . . . . . . 1
Table of Contents ................................................ 11
Table of Cases and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 111
Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
POINT I MOST OF THE SCHOOL DISTRICT'S
POINT I IS SUPERFLUOUS;
ONLY THE DISTRICT'S PARTICIPATION
RIGHT IS SIGNIFICANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
POINT II w.T. GRANT CO v. SROGI CITED
BY RESPONDENTS, IN ACTUALITY
SUPPORTS RECOMMENCEMENT . . . . . . . . . . . . . . . . . . . 3
POINT III INTERVENOR-RESPONDENT'S INITIAL
NON-PARTY STATUS BELIES ITS ASSERTION
OF INCOMPLETE COMMENCEMENT;
IMPLIED SEVERANCE DOCTRINE
RENDERS LOT 200-1-9 DISMISSAL
A FINAL DISMISSAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Implied Severance as Final Dismissal. . . . . . . . . . . . . . . . . . . . 6
POINT IV OTHER THAN WYETH HOLDINGS,
RESPONDENTS CITE NO CASES
DENYING RECOMMENCEMENT . . . . . . . . . . . . . . . . . . . . 7
POINT V THE RECORD PRESENTS
NO EVIDENCE OF LOSS OR PREJUDICE;
IT MERELY REFLECTS AN IRRELEVANT,
ILLUSORY OPPORTUNITY. . . . . . . . . . . . . . . . . . . . . . . . .. 10
11
POINT VI CPLR 205(a)'s SPECIFICATION OF
FOUR EXCEPTIONS TO
RECOMMENCEMENT, PRECLUDES
ENGRAFTING PREJUDICE AS A FIFTH. . . . . . . . . . . . . . 13
CONCLUSION THE APPELLATE DIVISION DECISION
MUST BE REVERSED WITH
RECOMMENCEMENT GRANTED ............... 15
TABLE OF CASES AND AUTHORITIES
Cases Page
Burke v. Crosson, 85 N.Y.2d 10 (1995) 6
Dregerv. New York State ThruwavAuthority, 81 N.Y.2d 721 (1992) 5
In re Matter of Kelly. as Ins. Commissioner, 21 N.Y .. 2d 195 (1967) 6
Matter ofBd of Managers of Copley Court Condominium v. Town of Ossining,
19 N.Y.3d 869 (2012) 8
Matter of Bloom ingda Ie 's v. City of White Plains, 294 A.D.2d 570
(2nd Dept. 2002) 1, 2
Matter of Cornwall Yacht Club v. Assessor,
110 A.D.3d 1070 (2nd Dept. 2013) 8,9
Matter of Harris Bav Yacht Club v. Town of Queensbury,
46 A.D.3d 1304 (3fd Dept. 2007) 5
Matter of Heller, 23 A.D.3d 61 (2nd Dept., 2005),
aff'd 6 N.Y.3d 649 (2006) 13
iii
Matter ofMM 1. LLC" 72 A.D.3d 1497 (4th Dept., 2010) 14
Matter of Morris Investors v. Commissioner of Finance of NYC,
69 N.Y.2d 933, 935 (1987) 2
Matter ofWveth Holding Corp. v. Assessor of the Town of Orange town ,
(2nd Dept. 2011) 2, 7, 8,9
Orange and Rockland Util, v. Howard Oil Co., 46 N.Y.2d 880,882 (1979) 6
Ratka v. St. Francis Hosp., 44 N.Y.2d 604,609 (1978) 6
w.r Grant Co v. Srogi, 52 N.Y.2d 496 (1981) 3
Yonkers Contr. Co. v. Port Authority, 93 N.Y.2d 375 (1999) 9
Statutes Page
CPLR 205 (a) 3,4, 7, 8, 9, 13, 14
EPTL § 11-2.4 13
RPTL § 708 (3) 1,2,3,5,6, 7, 8, 14
RPTL § 712 (2-a) 4,5,6
RPTL § 726 10, 11, 12
IV
QUESTIONS PRESENTED
1. Except for the Respondent-Intervenor's right to participate, is most of its
POINT I merely superfluous?
The foregoing should be answered in the affirmative.
2. Does W. T. Grant Co v. Srogi cited by respondents, in actuality support
recommencement?
The foregoing should be answered in the affirmative.
3. Does Intervenor-Respondent's Non-Party status belie its assertion of
incomplete commencement and does the Implied Severance Doctrine render lot
200-1-9 (Rye Neck lot) dismissal a final dismissal?
The foregoing should be answered in the affirmative.
4. Do Respondents cite any other cases besides Wveth Holdings in support of
denying recommencement?
The foregoing should be answered in the negative.
5. Does the Record present TCRF vis-a-vis bonding as merely an irrelevant,
illusory opportunity?
The foregoing should be answered in the affirmative.
6. Does CPLR 205 (a)'s specification of four exceptions to recommencement,
preclude engrafting prejudice as a fifth?
The foregoing should be answered in the affirmative.
v
POINT I
MOST OF THE SCHOOL DISTRICT'S
POINT I IS SUPERFLUOUS;
ONLY THE DISTRICT'S PARTICIPATION
RIGHT IS SIGNIFICANT
For the first three and one-half pages of its POINT I,Intervenor-
Respondent School District argues the obvious: school districts bear a formidable
burden of raising funds for operating schools, thereby generating a legislative
intent of allowing school district participation in tax certiorari proceedings. No
issue exists here.
Appellant concedes strict performance ofRPTL § 708 (3)'s delivery
conditions which provide for dismissal upon failure to comply. Nonetheless, re-
commencement is available, and the District may be heard in the recommenced
proceeding. Cf. Matter of Bloomingdale's v. City of White Plains, 294 A.D.2d
570 (2nd Dept. 2002), where at p. 571, the court stated:
The school district will have the opportunity to contest the
petition and receive a full and fair opportunity to be heard
on the issue of valuation of the petitioners' properties for
assessment purposes (see Liberty Mgt. o/N. Y. v. Assessor
o/Town o/Glenville, 284 A.D.2d 61,64 .... "
In Matter o/Bloomingdale 's, supra, led by its then presiding Justice, the
Second Department evidently was unconcerned with the "unless excused for good
cause shown" clause of RPTL § 708 (3). That court totally ignored any pretense
of legitimate excuse for late or non-delivery. When faced with counsel's
admission of five years of unawareness of the statute's amendment, the court
found it more expeditious to allow the case to proceed as though dismissal with
leave to recommence had been granted. It ignored the statute's 10 day time
requirement by recognizing nunc pro tunc delivery to the Superintendent, albeit up
to five years lapse of time. Without further fanfare, the Second Department moved
the case months earlier to the position to which it would have arrived had the case
first been dismissed, followed by recommencement.
Matter of Bloomingdale 's facts in their most significant aspects are identical
with those of the instant, to wit: (i) petitioner's request for nunc pro tunc delivery
of the tax certiorari papers in resolution of the dismissal motion (A-60) without the
need of proceeding to recommencement; (ii) multiple years of non-delivery;
(iii) no exchange of appraisals; and most importantly, (iv) the school district's
opportunity to be heard remaining intact.
This 2002 decision totally conflicts with the Second Department's later
decisions in Matter of Wveth Holdings (infra, p. 8) and this case. The Matter of
Bloomingdale's court certainly recognized that rendering superfluous the "unless
excused for good cause shown" clause of RPTL § 708 (3) constituted a natural
consequence of recommencement. Matter of Morris Investors v. Commissioner of
Finance of NYC, 69 N.Y.2d 933,935 (1987).
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POINT II
W. T. GRANT CO v. SROGI 1 CITED
BY RESPONDENTS, IN ACTUALITY
SUPPORTS RECOMMENCEMENT
Respondents viewed W T GRANT CO v. SROGI, supra, as the reverse
reflection from a looking glass. As opposed to the cited case, the CPLR provision
here, CPLR 205 (a), represents the specific statute relating to recommencement,
and thus prevails over RPTL § 708 (3), one of a plethora of dismissal statutes
contained in the Consolidated Laws, each devoid of a recommencement provision.
In W T GRANT CO v. SROGI, the RPTL provision constituted specific
legislation governing recovery of litigation costs governed by the there applicable
article of the RPTL. It consequently prevailed over the CPLR general litigation
costs provision applying generally to all litigation unless provided for otherwise.
Accordingly, applying to the statute here the like principle of the specific
prevailing over the general, then CPLR 205 (a) as the specific recommencement
statute, trumps RPTL § 708 (3) providing not a word related to recommencement.
1 WT Grant Co v. Srogi, 52 N.Y.2d 496 (1981).
-3-
POINT III
INTERVENOR-RESPONDENT'S INITIAL
NON-PARTY STATUS BELIES ITS ASSERTION
OF INCOMPLETE COMMENCEMENT;
IMPLIED SEVERANCE DOCTRINE
RENDERS LOT 200-1-9 DISMISSAL
A FINAL DISMISSAL
CPLR 205 (a) requires both timely commencement of the dismissed cause
and its final termination as a predicate to application of the recommencement
statute. This case meets both conditions.
Commencement
The Intervenor-Respondent School District at p. 14 of its Brief advances the
fiction that the District is a "pseudo" necessary party. It does so in vain contention
that Appellant had not met the CPLR 205 (a) "timely commenced" requirement.
It asserts its point by doing no more than assuming the truth of its hypothesis, i.e.,
absent the subsequent mailing of the tax certiorari papers to its Superintendent,
Appellant has not met the CPLR 205 (a) "timely commenced" requirement.
This faulty argument ignores the District's initial standing as a non-party
(District's Brief, p. 15) at the time of filing and service of process. It remains so
until such time as it affirmatively elects to intervene (RPTL § 712 (2-a)) at some
time subsequent to mailing, or if not mailed, then when it affirmatively makes the
election to become a party.
-4-
Respondents' misapprehension stems from their misunderstanding and
misapplication of Dreger v. New York State Thruway Authority, 81 N.Y.2d 721
(1992). There, commencement was not complete by reason of faulty mailing to
the Attorney General. There, the Attorney General served as the statutory agent-
designee of a State Agency (Thruway Authority). In effect, the Attorney General
was the "pseudo" party. Here, there exists no principal-agent relationship between
the Respondent City of Rye and the Intervenor-Respondent School District. The
School District remained a non-party awaiting its option to intervene.
The subsequent event (mailing to the Superintendent), (i) coupled with the
District's non-party status, and (ii) further coupled with the District's right to
refrain from intervening (RPTL § 712 (2-a)), ipso facto contradicts Respondents'
contention that receipt of the papers constitutes a required further element of
commencement. Cf. Harris Bay Yacht Club v. Town of Queens berry ,46 A.D.3d
1304 (3 rd Dept. 2007), to the effect that even mailing of the tax certiorari papers as
required would have been insufficient in and of itself to have conferred party status
upon the District, since RPTL § 712 (2-a) creates no compulsion that the school
district intervene.
In the final analysis, Respondents' "pseudo" necessary party fiction
constitutes a function of their failure to recognize that the 10 day subsequent notice
-5-
exists simply to inform a school district of its opportunity to participate in the
litigation. See RPTL § 712 (2-a).
Implied Severance as Final Dismissal
The lot here subject to dismissal is Lot 200-1-9, water supply interred in
streets located wholly within the Rye Neck School District (A-162, A-169 & 170).
This lot is assessed and valued separately and apart from the other water supply lot,
Lot 200-1-10 located wholly within the Rye City School District (A-162, A-169 &
170). On the Respondent-City of Rye's cross-appeal at the Appellate Division, that
court reversed and dismissed as to the Respondent City of Rye vis-a-vis Lot 200-1-9
wholly contained within the Rye-Neck School District. The proceedings continue
with respect to Llot 10 and have been fully and finally dismissed with respect to
Lot 9 (see following paragraph), the lot here at issue.
Having assessments independent in location and evaluation, the proceedings
could have been brought separately as independent causes of action. Accordingly,
the doctrine of implied severance applies. See:
Orange and Rockland UtilI v. Howard Oil Co., 46 N.Y.2d 880,882 (1979);
Ratka v. St. Francis Hasp., 44 N.Y.2d 604,609 (1978);
In re Matter of Kelly, as Tax Commissioner, 21 N.Y .. 2d 195,202 (1967);
Burke v. Crosson, 85 N.Y.2d 10, 16. (1995); (dicta).
-6-
The Preliminary Appeal Statement provided to the Clerk contains the
pertinent facts and foregoing case support for application of the Doctrine. The
Preliminary Appeal Statement will be found as part of the Addendum to
Appellant's Brief (ADD-l & 2). Application of the Doctrine requires recognition
of this case as fully dismissed vis-a-vis Lot 200-1-9, both for the purpose of
(a) negating the Intervenor-Respondent District's contention of no final dismissal,
and (b) supporting appeal jurisdiction of this Court with respect to Respondent City
of Rye relevant to the lot located within the Rye-Neck District. Thus, the
proceeding here with respect to Lot 200-1-9 has been fully dismissed, negating the
argument that this case lies outside ofCPLR 205 (a) relief.
POINT IV
OTHER THAN WYETH HOLDINGS, 2
RESPONDENTS CITE NO CASES
DENYING RECOMMENCEMENT
The RPTL § 708 (3) dismissal cases cited by Respondents throughout their
respective Briefs unjustifiedly present those cases as authority for withholding
2 Matter of Wyeth Holdings v. Town of Orange town, 84 A.D.3d 1104, 1107 ((2nd Dept.
2011).
-7-
recommencement. Those cases involve merely un-excused dismissals. They never
reach the recommencement issue.
A careful reading of the cases cited by Respondents as denying
recommencement, other than for Matter of Wyeth Holdings v. Town of
Orangetown, 84 A.D.3d 1104, 1107 ((2nd Dept. 2011), discloses that those cases
deal merely with dismissal on the basis of failure to comply with RPTL § 708 (3).
Those cases make no mention ofCPLR 205 (a). Although Wyeth Holdings indeed
relates to CPLR 205 (a), for the reasons expressed throughout Appellants' Briefs,
Wyeth Holdings should be overruled by this Court upon the decision to be made
herein.
Matter ofBoardd o/Managers of Copley Court Condominium v. Town of
Ossining, 19 N.Y.3d 869 (2012) and Matter of Cornwall Yacht Club v. Assessor,
110 A.D.3d 1070 (2nd Dept. 2013) constitute Respondents' primary other cases
cited for rejection ofrecommencement. In actuality, those cases make no such
ruling. They limit their holding to the dismissal consequence of failure to perform
the required RPTL § 708 (3) delivery.
In Matter of Board of Managers of Copley Court Condominium, supra, the
petitioner failed to demonstrate "excused for good cause shown," and thereby was
denied permission to serve nunc pro tunc. The Petitioner there sought the late
-8-
service as an adjunct to its "good cause shown" opposition to the dismissal motion.
Petitioner failed to seek recommencement. Both the Appellate Division and this
Court never dealt with the CPLR 205 (a) recommencement issue as the Appellant
there never sought the relief.
In the other case, Matter of Cornwall Yacht Club, supra, the case already had
reached judgment by which the petitioner was bound. The petitioner there had
never sought recommencement. It merely sought the opening of the judgment to
extend the proceeding to the school district. On the basis of the prior conclusion
of the case, the court rejected the application. The Petitioner there never raised, nor
did the Appellate Division ever deal with the CPLR 205 (a) recommencement issue.
Finally, Yonkers Contr. Co. v. Port Authority, 93 N.Y.2d 375 (1999), also
mentioned in Wyeth Holdings. has no pertinence here. There, the underlying case
indeed had been dismissed upon the merits, not once, but twice, i.e. (a) arbitrator's
ruling and (b) statute of limitations. Both dismissals go to the very essence of the
claim, as opposed to here, where the dismissal has no relationship to the essence of
the cause of action. 3
3 See Appellant's Brief, POINT I & POINT II. See also at Appellant's Brief POINT III
making Appellants argument that "excused for good cause shown" connotes not finality, but
rather connotes leniency through an initial opportunity for avoiding dismissal.
-9-
POINT V
THE RECORD PRESENTS
NO EVIDENCE OF LOSS OR PREJUDICE;
IT MERELY REFLECTS AN
IRRELEVANT, ILLUSORY OPPORTUNITY
The hardship complained of in the School District's Brief represents a
reluctance at compliance with RPTL § 726 requiring refund of taxes brought about
by over-assessment. The issue here relates not to whether the District must bear
the hardship of paying tax refunds, but whether the missed opportunity for
participation in a TCRF installment sinking fund presents a benefit over post-
judgment bonding with installment pay-back. The Record is devoid of evidence
disclosing any preference to sinking fund over the usual bonding.
For its contention of "prejudice," the District superficially addresses the
issue at only eight short paragraphs of the Sharff and Bucci affidavits. Paras.
25 - 29 (A-27) of the Sharff affidavit, and paras. 8 - 10 (A-58 - 59) of the Bucci
affidavit merely contend that lack of notice of the several proceedings precluded
the District from participating in TCRF. Furthermore, those affidavits contain no
evidence that the District ever made TCRF deposits in other tax certiorari cases, or
for that matter, even an offer of evidence of hardship attendant to bonding tax
refunds in lieu of the pre-paid TCRF sinking fund.
-10-
Those paragraphs of the District's opposing papers represent a naked
statement of missed opportunity, without any showing, or even the contention, that
deposits to TCRF would have created less expense for the District and its
homeowners than if they were called upon after judgment or settlement to refund
taxes in the usual manner through an alternate financing plan over time. That
missed opportunity for making TCRF deposits, standing alone, evinces neither
expense nor prejudice.
On the other hand, the Davis Reply Affidavit (A-68 - 69), read in conjunction
with the School District's concession at p. 23 of its Brief, shows that the overall
aborted settlement refund of $186,000 for the years at issue represents only "one-
half of one percent" of the District's $32,597,587 budget for 2011-2012. Stated in
terms of the usual bonding of refunds over 5 years, the annual refund would
amount to $32,600, a one-thousandth (.1 %) part of the $32,597,587 budget.
Refunds must be paid (RPTL § 726) whether from a TCRF or bonding. This
"very small school district," 4 boasting a greater than $32 million dollar budget,
with no prejudice will find the wherewithal to raise the $32,600/year (.1 % of
annual budget) over a 5 year payout. Indeed, should reversal occur, Appellant will
4 Intervenor-Respondent's Briefp. 21 (last line).
-11-
accept from Intervenor-Respondent the aborted settlement in 5 annual installment
payments without interest, and the decision may so provide. The latter represents
a payout methodology prevalent in New York City.
The State Education Department documents cited at Intervenor-
Respondent's POINT III have no pertinence here. In major part, they deal with the
necessity for well conceived and managed school district finances. Appellant
concurs. The admonition, however, does not bear upon the District's obligation to
refund tax overpayment as a consequence of over-assessment (RPTL § 726). None
of the State Education Department documents pertain to preference for TCRF over
the usual bonding.
Finally, except for those cases in which judgment already had been entered,
none of the cases cited at Intervenor-Respondent's POINT III pertains to petitioner
(taxpayer) acts prejudicing the School District. The courts employ the word
"prejudice" in the negative sense. In a given case, the courts will state that no
prejudice exits, as the Court should state in the instant case. In those cases which
had reached judgment, however, by reason of the school district's unawareness of
the tax proceeding's pendency, prejudice exists as the petitioner is then bound by
the entered judgement to which it agreed.
-12-
POINT VI
CPLR 205(a)'s SPECIFICATION OF
FOUR EXCEPTIONS TO
RECOMMENCEMENT, PRECLUDES
ENGRAFTING PREJUDICE AS A FIFTH
CPLR § 205(a) contains within it four specified exceptions to the
recommencement right, namely: (i) voluntary discontinuance, (ii) failure of
personal jurisdiction, (iii) neglect to prosecute, or (iv) final judgment on merits.
When the Legislature has chosen standards, courts may not add more, as the
Legislature made its choice. In other words, expressio unius est exclusio alterious.
This maxim of legislative construction governs excluding "prejudice" as the
proffered fifth exception.
Matter of Heller, 23 A.D.3d 61 (App. Div. 2nd Dept., 2005), affd 6 N.Y.3d
649 (2006), a case involving the State's unitrust statute (EPTL § 11-2.4 ), illustrates
the foregoing concept. In that case, the statute gave the trustees the right to elect
unitrust subject to specified limits. In approving the trustees' unitrust election, this
Court relied upon the foregoing statutory construction in excusing the trustees from
adhering to the venerable proscription against conflict of interest and self-dealing.
The Court did so stating that the statute itself contained, as here, at least four
other standards for determination of the validity of the trustees' election. None
-13-
pertained to conflict of interest and self dealing. In so mentioning the limitation
engendered by the statute's specified standards, the Court held at p. 64:
"The Legislature's failure to include within this framework
the absolute prohibition that the petitioner suggests is a clear
indication that its [the Legislature's] intent was otherwise."
Here, the recommencement relief springs from statute, CPLR 205(a), which
specifies the only four exclusions viewed by the Legislature as exceptions to the
recommencement relief extended by the statute. The statute constrains the limits of
the exceptions to the four contained within CPLR 205(a). "Prejudice" is not one of
them. Paraphrasing the words of Matter of Heller, supra,
"The Legislature's failure to include within this framework"
the freedom from prejudice exception the District "suggests is
a clear indication that its [the Legislature's] intent was otherwise."
In Matter ofMM 1. LLC, 72 A.D.3d 1497 (4th Dept., 2010), the Appellate
Division, in affirming the lower court's granting of the right to recommence,
viewed recommencement within 6 months after dismissal as a statutory right of the
tax certiorari petitioner. There, as here, the proceeding had been dismissed for
failure to comport with RPTL § 708(3)'s requirement for delivery of the tax
certiorari papers to the Superintendent of Schools. In reaching its decision, the
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court noted the specific exclusions and petitioner's freedom therefrom, by
mentioning the exclusions,
" ... is terminated in any other manner than by ... a
failure to obtain personal jurisdiction over the
[respondent] ... [other 3 exceptions specified] .... "
Prejudice received neither mention nor consideration.
CONCLUSION
THE APPELLATE DIVISION
DECISION MUST BE REVERSED
WITH RECOMMENCEMENT GRANTED
Dated: White Plains, New York
October 21,2015
-15-
Respectfully submitted,
McCarthy Fingar LLP
Ste en Davis
Attorneys for Appellant
11 Martine Avenue
White Plains, NY 10606
(914) 946-3700