In the Matter of Westchester Joint Water Works, Appellant,v.Assessor of City of Rye, Respondent; Rye Neck Union Free School District, Intervenor-Respondent. (And Other Proceedings.)

Brief

N.Y.April 27, 2016

APL-2015-00159 To be Argued by: DARIUS P. CHAFIZADEH (Time Requested: 20 Minutes) Westchester County Clerk's Index Nos. 18050/02, 17029/03, 17017/04, 18636/05, 20599/06, 20880/07, 22195/08, 23918/09 and 25259/10 Appellate Division, Second Department Docket No. 2012-09037 Q!ourt of Appeals nf tlp! ~tate of New tork ------~-·.------ WESTCHESTER JOINT WATER WORKS, Appellant, -against- ASSESSOR OF THE CITY OF RYE, Respondent, -and- RYE NECK UNION FREE SCHOOL DISTRICT, Intervenor-Respondent. BRIEF FOR RESPONDENT ASSESSOR OF THE CITY OF RYE Dated: October 7, 2015 HARRIS BEACH PLLC Attorneys for Respondent Assessor of the City of Rye 445 Hamilton Avenue, Suite 1206 White Plains, New York 10601 Tel.: (914) 683-1200 Fax: (914) 683-1210 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................. 1 SUMMARY OF ARGUMENT ................................................................................. 2 STATEMENT OF FACTS/PROCEDURAL HISTORY .......................................... 5 ARGUMENT ............................................................................................................. 8 POINT I DISMISSAL OF THE PETITIONS IS REQUIRED UNDER RPTL 708(3) BECAUSE PETITIONER DID NOT SERVE NOTICE UPON THE SCHOOL DISTRICT ................................................. 8 A. A Plain Reading Of RPTL 708(3) And CPLR 205(a) Requires Dismissal Of The Petitions .................................. 8 B. The Second Department's Decision Is In Accord With This Court's Prior Ruling In Copley Court ................................................................................. 10 C. This Court's Decision In Yonkers Contracting Also Requires Dismissal Of The Petitions ................................... 12 D. The Second Department's Decision Is Further In Accord With This Court's Ruling In W.T. Grant Which Provides That The RPTL And Not The CPLR Is Controlling In This Matter ............................... 15 POINT II APPELLANT IMPROPERLY RELIES ON THE MORRIS INVESTORS AND FLEMING DECISIONS .................................................................................. 18 CONCLUSION ....................................................................................................... 21 1 TABLE OF AUTHORITIES Cases Andre v. City ofNew York, 47 A.D.3d 605, 850 N.Y.S.2d 146 (2d Dep't 2008) ....................................................................... .4 Board ofManagers of Copley Court Condominium v. Town of Ossining, 19 N.Y.3d 869, 950 N.Y.S.2d 63 (2012) ............................................................................... passim Board of Managers of Copley Court Condominium v. Town of Ossining, 79 A.D.3d 1032, 913 N.Y.S.2d 738 (2d Dep't 2010) ..................................................................... .11 Cornwall Yacht Club v. Assessor, 110 A.D.3d 1070, 974 N.Y.S.2d 268 (2d Dep't 2013) .................................... 3, 17 Finger v. Saal, 56 A.D.3d 606, 870 N.Y.S.2d 32 (2d Dep't 2008) ......................................................................... .4 Fleming v. Long Island Railroad, 72 N.Y.2d 998, 534 N.Y.S.2d 371 (1988) ............................................................ 20 Macy's Primary Real Estate, Inc. v. Assessor of City of White Plains, 291 A.D.2d 73, 738 N.Y.S.2d 388 (2d Dep't 2002) ........................................... .14 MM 1, LLC v. Lavancher, 72 A.D.3d 1497, 899 N.Y.S.2d 774 (4th Dep't 2010) ..................................................................... 18 Morris Investors v. Commissioner of Finance of the City ofNew York, 69 N.Y.2d 933, 516 N.Y.S.2d 635 (1987) .............................................................................. 18, 19 People v. Havrish, 8 N.Y.3d 389, 834 N.Y.S.2d 681 (2007) ................................... .4 11 W.T. Grant Company v. Srogi, 52 N.Y.2d 496, 438 N.Y.S.2d 761 (1981) .................................................... passim Wyeth Holdings Corporation v. Town ofOrangetown, 84 A.D.3d 1104, 924 N.Y.S.2d 108 (2d Dep't 2011) ............................... 3, 10, 17 Yonkers Contracting Company, Inc. v. Port Authority Trans-Hudson Corporation, 93 N.Y.2d 375, 690 N.Y.S.2d 512 (1999) ............................................................................. passim Statutes CPLR 205(a) .................................................................................................... passim CPLR 8303 ............................................................................................................... 16 Public Authorities Law 1276(1) ............................................................................... 20 RPTL 708(3) .................................................................................................... passim RPTL 722 ................................................................................................................. 16 Other Authorities Mem. of Senator Holland, L 1995, ch 693, 1995 NY Legis Ann .............................................................................................. l4 Treatises McKinney's Consolidated Laws ofNew York Statutes Law§ 144 .......................... 9 111 COUNTER-STATEMENT OF QUESTIONS PRESENTED Question: Was the Second Department correct in denying the request of petitioner Westchester Joint Water Works (hereinafter "Appellant" or "Westchester Joint") to recommence Article 7 Real Property Tax Law ("RPTL") proceedings for nine years pursuant to CPLR 205(a) following Appellant's failure to provide the Rye Neck Union Free School District (the "School District" or "Rye Neck") with notice of such proceedings as mandated by RPTL 708(3) for failure to demonstrate good cause for such failure? Answer: Yes. The Second Department properly held that a dismissal pursuant to RPTL 708(3) was a dismissal upon the merits which precludes recommencement under CPLR 205(a). Furthermore, the Second Department's decision here is in conformity with this Court's prior decisions. SUMMARY OF ARGUMENT Westchester Joint's appeal must be denied because the Second Department's decision fits squarely in line with this Court's recent ruling in the factually similar case of Board of Managers of Copley Court Condominium v. Town of Ossining, 19 N.Y.3d 869, 950 N.Y.S.2d 63 (2012) where the Court affirmed dismissal of six years' of tax certiorari petitions for failure to notice the relevant school district or show good cause for such failure. The Second Department's ruling is also in accordance with this Court's decision in Yonkers Contracting Company, Inc. v. Port Authority Trans-Hudson Corporation, 93 N.Y.2d 375, 690 N.Y.S.2d 512 (1999) where the Court held that CPLR 205(a) does not apply to conditions to the right of action, such as the condition that Appellant provide the School District with notice, as required here under RPTL 708(3). Appellant sought to recommence nine years' of tax certiorari proceedings against the City of Rye ("City") and the School District pursuant to CPLR 205(a) following the dismissal of the petitions for failure to provide the School District with notice of commencement as required pursuant to RPTL 708(3); while conceding that it is unable to establish good cause for such failure. The Second Department dismissed the proceedings because the Appellant "failed to give notice of the proceedings to the Superintendent of the School District pursuant to RPTL 2 708(3), and lacked good cause for its failure". (CA-5).1 Furthermore, the Second Department correctly held that CPLR 205(a) which permits recommencement of an action/proceeding in limited circumstances was inapplicable because the dismissal was on the merits. (CA-5). As set forth above and in more detail herein, the Second Department's decision is in accordance with this Court's ruling in Copley Court and Yonkers Contracting. The decision is also in accordance with this Court's decision in W.T. Grant. Specifically, W.T. Grant holds that where the RPTL expressly covers the point in issue (which is the case here), there can be no resort to the provisions of the CPLR as argued by Appellant. W.T. Grant Company v. Srogi, 52 N.Y.2d 496, 438 N.Y.S.2d 761 (1981). Finally, the Second Department's decision is in accordance with other Appellate Division cases which deny refiling under CPLR 205(a) following a RPTL 708(3) dismissal where no notice has been provided to the applicable school district. Cornwall Yacht Club v. Assessor, 110 A.D.3d 1070, 974 N.Y.S.2d 268 (2d Dep't 2013) (court properly dismissed petitions under RPTL 708(3) where petitioner had not served school district with notice and denied cross-motion for leave to refile under CPLR 205(a)); Wyeth Holdings Corporation v. Assessor v. References to the Appellant's Appendix will be referred to herein as "CA -_" and "A-_," while references to the Respondent's Appendix, which is submitted to provide the Court with a full copy of the record on appeal will be referenced herein as "RA -_". 3 Town of Orangetown, 84 A.D.3d 1104, 1107, 924 N.Y.S.2d 108, 111 (2d Dep't 2011) (in granting dismissal, the court held that "a dismissal pursuant to RPTL 708(3) operates as a dismissal 'upon the merits,' and, accordingly, the relief afforded by CPLR 205(a) is unavailable"). Based on the clear reading of this Court's prior decisions and a plain reading of the applicable statutes, it is clear that Appellant's petitions must be dismissed under RPTL 708(3) without leave to refile under CPLR 205(a).2 Should this Court reverse the Second Department's decision, it would go against its prior rulings in in Copley Court, Yonkers Contracting and W.T. Grant. More importantly, if the Court was to allow refiling under CPLR 205(a) it would effectively eviscerate the "good cause shown" provision of RPTL 708(3) and remove any requirement that petitioners timely notify the applicable school districts; thereby rendering portions of RPTL 708(3) a nullity. Indeed, if the Second Department's decision is reversed, years and years of tax certiorari proceedings could pile up against school districts without the school districts having any knowledge of challenges to the tax assessment and potential refunds due thereon. 2 The only issue on appeal is whether Appellant can refile under CPLR 205(a) following a dismissal pursuant to RPTL 708(3). All other issues previously decided by the Second Department, including the determination that the City has standing to move for dismissal, and the dismissal as to the City, are not raised in Appellant's brief and as such, must be deemed abandoned. People v. Havrish, 8 N.Y.3d 389, 392, 834 N.Y.S.2d 681, 684 at fn. 1 (2007); Andre v. City of New York, 47 A.D.3d 605, 606, 850 N.Y.S.2d 146, 147 (2d Dep't 2008) and Finger v. Saal, 56 A.D.3d 606, 607, 870 N.Y.S.2d 32, 33 (2d Dep't 2008). 4 STATEMENT OF FACTS/PROCEDURAL HISTORY Appellant commenced nine tax certiorari proceedings on two (2) separate tax parcels against the City, pursuant to RPTL Article 7 for the years 2002 through 2010. One of the tax parcels is listed on the City's Assessment Roll as Section 200, Block 1, Lot 9, this parcel is located within the School District's boundaries (the "Rye Neck Parcel"). (RA-79). Appellant's other parcel is listed as Section 200, Block 1, Lot 10 and is located in the Rye City School District (the "Rye City Parcel") and is unrelated to this appeal because notice was provided to the Rye City School District. (RA-79). In each of the nine years, for the Rye Neck Parcel, Appellant failed to provide any notice of the petitions to the School District as mandated by RPTL 708(3). (A-29-A-46; RA-1-RA-73).3 The City and School District filed motions seeking dismissal of the petitions for failure to comply with RPTL 708(3 ). (A-20-A-59, A-97-A-114; RA-1-RA-74). Appellant opposed the City and School District's motions while also seeking leave to refile its petitions pursuant to CPLR 205(a) in the event the proceedings were dismissed based on noncompliance with RPTL 708(3). (A-60-96; RA-75). Following the filing of reply papers with 3 Based on Appellant's failure to provide notice to Rye Neck it is also unable to comply with RPTL 708's requirement that proof of mailing to the superintendent of schools be filed with the court within ten days of such mailing. See RPTL 708(3). 5 the trial court, additional correspondence was submitted to the trial court. (A-115-A-171; RA-76-RA-94). On July 24, 2012, Justice La Cava granted the School District's motion to dismiss the petitions for failure to comply with RPTL 708(3) and denied Appellant's request for leave to recommence pursuant to CPLR 205(a). (A-18). As to the City, the Supreme Court denied its request for dismissal based on Appellant's failure to comply with RPTL 708(3) holding that the City lacked standing to move on such grounds. (A-13). The Second Department reversed the lower court, holding that the City did in fact have standing to seek dismissal of the proceedings based on the Appellant's failure to give notice of the proceedings to the Superintendent of Rye Neck and thereafter, held that dismissal of the petitions as to both the City and Rye Neck was warranted pursuant to RPTL 708(3). (CA-5). The Second Department also denied Appellant's application to refile under CPLR 205(a), holding that "[s]ince 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). This appeal is specifically limited to an appeal of the Second Department's denial of Appellant's application to refile under CPLR 205(a). See Appellant's Brief at p. 1. While Appellant has only appealed the Second Department's denial of its application to recommence under CPLR 205(a), Appellant has conceded that 6 it failed to provide notice to the School District for nine years, without any good cause for such failure. See Appellant's Brief. Further, Appellant has not appealed the Second Department's decision establishing that the City has standing to move for dismissal or the court's granting of such dismissal. (CA-5). Appellant attempts to invalidate the notice requirements of RPTL 708(3) by arguing that such provision, established by the Legislature, is superfluous and/or meaningless. See Appellant's Brief. 7 ARGUMENT POINT I DISMISSAL OF THE PETITIONS IS REQUIRED UNDER RPTL 708(3) BECAUSE PETITIONER DID NOT SERVE NOTICE UPON THE SCHOOL DISTRICT A. A Plain Reading OfRPTL 708(3) And CPLR 205(a) Requires Dismissal Of The Petitions RPTL 708(3) requires that the relevant school district receive notice of the filing of the petitions providing that: one copy of the petition and notice shall be mailed within ten days from the date of service thereof as above provided to the superintendent of schools of any school district within which any part of the real property on which the assessment to be reviewed is located and, in all instances, to the treasurer of any county in which any part of the real property is located .... Failure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown. See RPTL 708(3). Thus, under the RPTL, petitioners must provide the relevant school districts with timely notice of their filing and absent good cause for such failure, the proceedings must be dismissed. Here, Appellant has conceded that it failed to provide the School District with notice for nine years without good cause for such failure; this requires dismissal of the instant proceedings. 8 CPLR 205(a) precludes refiling of matters which are dismissed upon the merits providing as follows: If an action is timely commenced and is terminated by any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendants, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. See CPLR 205(a). Based on the principals of strict construction where an action is terminated as a "final judgment upon the merits", as is the case here, such matter may not be recommenced within six months. Furthermore, it is a fundamental tenant of statutory construction that "statutes will not be construed as to render them ineffective." McKinney's Consolidated Laws of New York Statutes Law § 144. Were this Court to overturn the Second Department's decision here and allow refiling of Appellant's petitions, it would effectively amend RPTL 708(3) by removing any requirement that petitioners notify the applicable school districts, thereby rendering provisions of RPTL 708(3) a nullity. In seeking to refile, Appellant is actually asking this Court to promote a system of review where a petitioner can provide no notice to the applicable school district for a period of 9 nine years and then once the matter has been adjudicated, require the unaware school district to pay the necessary refunds, without ever providing it any opportunity to take part or intervene in the judicial process. The failure to notify the School District would also prejudice the City because it now would be required to pay all costs associated with any tax assessment proceeding; including costs of appraisals and specialty appraisals. B. The Second Department's Decision Is In Accord With This Court's Prior Ruling In Copley Court The Second Department's decision is in conformity with this Court's decisions in Copley Court, Yonkers Contracting and W.T. Grant warranting the denial of Westchester Joint's appeal. Copley Court, 19 N.Y.3d 869, 950 N.Y.S.2d 63; Yonkers Contracting, 93 N.Y.2d 375, 690 N.Y.S.2d 512; and W.T. Grant.4 In Copley Court, the petitioner mistakenly mailed copies of the petitions to another school district for a period of six (6) years. Copley Court, 19 N.Y.3d 870, 950 N.Y.S.2d 64. Upon learning of the improperly served petitions, the school district moved to dismiss the proceedings and petitioner cross moved for leave to serve the petitions upon the proper school district nunc-pro-tunc. Id. In reversing the Supreme Court decision in Copley Court, the Second Department held that "the 4 New York courts have repeatedly dismissed petitions under RPTL 708(3) and denied leave to recommence pursuant to CPLR 205(a) where there was no service of any notice provided to the appropriate school superintendent. Cornwall Yacht Club, Inc. v. Assessor, 110 A.D.3d 1070, 974 N.Y.S.2d 268 (2d Dep't 2013); Wyeth Holdings Corporation v. Town of Orangetown, 84 A.D.3d 1104,924 N.Y.S.2d 108 (2d Dep't 2011). 10 appellant's motion to dismiss the proceedings on the ground that the petitions were not served upon its Superintendent of Schools is granted, and the petitioner's cross motion for leave to serve the petitions upon the [school] nunc pro tunc is denied". Board of Managers of Copley Court Condominium v. Town of Ossining, 79 A.D.3d 1032, 1032, 913 N.Y.S.2d 738, 740 (2d Dep't 2010). This Court then affirmed the Second Department's decision dismissing the petitions clearly establishing that petitioner had failed to satisfy the statutory requirement and warranting full dismissal of the proceedings, without leave to refile. Copley Court, 19 N.Y.3d at 871, 950 N.Y.S.2d 64 (2012). The facts in the instant matter are similar to those found in Copley Court. Specifically, Appellant here failed to provide any notice of the petitions to the School District, as required by RPTL 708(3), for a period of nine years. As in Copley Court, motions were filed seeking dismissal of the petitions for failure to comply with RPTL 708(3), while the Appellant opposed such motions seeking leave to refile its petitions in the event the proceedings were dismissed under RPTL 708(3). Here, Appellant conceded that it failed to give notice of the proceedings to the School District's Superintendent pursuant to RPTL 708(3) and lacked good cause for its failure. Similarly, in both Copley Court and the instant proceeding, the Appellate Division, Second Department dismissed the petitions and denied leave to refile. See Copley Court, 19 N.Y.3d at 870, 950 N.Y.S.2d at 11 64 and (CA-5). Based on the seemingly identical nature of the instant action and Copley Court, it is clear that such case is controlling and warrants the denial of the appeal. Appellant in attempting to distinguish this case from Copley Court argues that this Court never considered CPLR 205(a) in rendering its decision in Copley Court. See Appellant's Brief at pp. 7-8. However, upon review of this Court's decision in Copley Court (and the Second Department's Decision in Copley Court) it is clear that this Court was aware that "Copley cross-moved for leave to serve [the school district]" which had been granted by the Supreme Court and reversed by the Second Department before it dismissed the petitions. Copley Court, 19 N.Y.3d at 870, 950 N.Y.S.2d at 64. It is submitted that if this Court decided re- filing was permissible under CPLR 205(a) in Copley Court, it would have so held. C. This Court's Decision In Yonkers Contracting Also Requires Dismissal Of The Petitions The Second Department's decision in this case relies on and is also in conformance with this Court's 1999 decision in Yonkers Contracting. 93 N.Y.2d 375, 690 N.Y.S.2d 512 which also requires denial of the instant appeal. (CA-3 through CA-5). In Yonkers Contracting, decided in 1999, this Court analyzed the applicability of CPLR 205(a) to a disputed claim brought by the plaintiff who served as the general contractor on a construction project for the Port Authority. 12 Id. at 377, 690 N.Y.S.2d 514. Plaintiff in Yonkers Contracting commenced a timely action in 1990. The lower court dismissed the action because the plaintiff failed to plead that it complied with a condition precedent to commencing the action, namely, submitting the disputed claim to the chief engineer for resolution. Id. The Appellate Division upheld the dismissal of the action with prejudice. Id. at 3 78. This Court then affirmed dismissal of the action. Id. Plaintiff then filed an action within six months of this Court's decision complying with the contract terms and the condition precedent arguing that CPLR 205(a) applied. ld. Defendant, the Port Authority, moved to dismiss the second action on the grounds the action was commenced beyond the time permitted to commence an action against it. Id. at 378. The Supreme Court and the Appellate Division agreed with the Port Authority holding that CPLR 205(a) was inapplicable. This Court affirmed. Specifically, this Court held that the prior dismissal of the action, based on plaintiffs failure to present the disputed claim to the project's chief engineer for resolution before instituting litigation was a dismissal "upon the merits," foreclosing the application ofCPLR 205(a). Id. at 380-381, 690 N.Y.S.2d at 516. Following the reasoning of Yonkers Contracting, where the legislature creates the right to sue and in the same statute conditioned the right to sue on the happening of 13 certain events, as is the case here under RPTL Article 7 and specifically, RPTL 708(3), CPLR 205(a) is inapplicable. Id. Here, the Second Department denied recommencement under CPLR 205(a) because Appellant failed to provide timely notice to the School District under RPTL 708(3). Similar to Yonkers Contracting, the right to maintain the action was created by statute, here, RPTL 708(3). Based on Appellant's failure to comply with RPTL 708(3) which was modified in 1995 to add language providing that "[t]ailure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown" the denial of recommencement was proper. See RPTL 708(3). Specifically, RPTL 708(3) was amended to ensure that a school district, which is considered a "necessary party" to such proceedings, would receive a "stronger voice" in tax certiorari proceedings, which threaten to "drastically and unexpectedly reduce the budget revenue source of a school district if the property owners are successful in having their assessments reduced." Macy's Primary Real Estate, Inc. v. Assessor of City of White Plains, 291 A.D.2d 73, 76, 738 N.Y.S.2d 388, (2d Dep't 2002)(citing Mem. of Senator Holland, L 1995, ch 693, 1995 NY Legis Ann, at 533). If a petitioner is permitted to recommence a proceeding where the school district receives no notice under CPLR 205(a), years can go by before the school district can even potentially defend against the proceeding. The school district would then be forced to pay 14 refunds on a potentially new assessment (settlement or court decision) which they had no knowledge of. The municipalities, here, the City, would also be forced to pay all litigation costs. In accordance with Yonkers Contracting, because Appellant has failed to comply with the requirements of RPTL 708(3) and such a requirement is a necessary condition to maintaining a tax assessment proceeding, the provisions of CPLR 205(a) are unavailable to remedy Westchester Joint's failure to notice Rye Neck. D. The Second Department's Decision Is Further In Accord With This Court's Ruling In W.T. Grant Which Provides That The RPTL And Not The CPLR Is Controlling In This Matter The petitions also must be dismissed because as this Court held in W.T. Grant Company v. Srogi, 52 N.Y.2d 496, 438 N.Y.S.2d 761 where a matter is addressed within the RPTL, a party cannot resort to the provisions of the CPLR. While not specifically addressing the interplay between RPTL 708(3) and CPLR 205(a), W.T. Grant does focus on the interplay between the RPTL and CPLR providing that where the RPTL has specifically covered a point in issue, there should be no resort to the provisions of the CPLR. W.T. Grant Company v. Srogi, 52 N.Y.2d at 514, 438 N.Y.S.2d at 770. W.T. Grant analyzes tax assessment review proceedings under Article 7 of the RPTL. W.T. Grant Company v. Srogi, 52 N.Y.2d 496, 438 N.Y.S.2d 761. Among other issues discussed in W.T. Grant 15 was the award of allowances to the successful petitioners. The trial court in W.T. Grant awarded petitioners allowances under both RPTL 722 and CPLR 8303, however the appellate court struck the additional allowance award under CPLR 8303 on the ground that the petitioners could only recover costs and allowances permitted by the RPTL. In affirming the appellate court's decision to preclude allowances under CPLR 8303, this Court explained that: "[a]s a general rule, there should be no resort to the provisions of the CPLR in instances where the RPTL expressly covers the point in issue". W.T. Grant Company v. Srogi, 52 N.Y.2d at 514, 438 N.Y.S.2d at 770. Applying W.T. Grant to instant action, RPTL 708(3) expressly covers instances where an improperly noticed action could continue following a determination that a school district did not receive timely notice of tax certiorari petitions. RPTL 708(3) specifically provides that "[f]ailure to comply with the provisions of this section shall result in the dismissal of the petition, unless excused for good cause shown". See RPTL 708(3). Because RPTL 708(3) provides an adequate remedy to allow improperly noticed actions to continue (i.e., upon a demonstration of good cause), the relief found under CPLR 205(a) to allow such actions to continue is not available. Therefore, based on this Court's prior holding in W.T. Grant, the instant appeal must be denied. 16 Furthermore, were the Court to allow the employment of CPLR 205(a) in cases dealing with RPTL 708(3) it would effectively render the "good cause shown" element of RPTL 708(3) meaningless. As provided in RPTL 708(3), the petitioner's failure to comply may be excused from dismissal if there has been a showing of good cause. As conceded by Appellant, it failed to give notice of the proceedings to the Superintendent of the School District pursuant to RPTL 708(3) and lacked good cause for its failure. To now allow Appellant to refile almost as a matter of course under CPLR 205(a) would eviscerate the requirement of a showing of good cause prior to dismissal of any case under RPTL 708(3). As such, this Court properly affirmed the denial of refiling in Copley Court as it should do here. Appellant's failure to provide any notice to the School District places this case in line with Copley Court, 19 N.Y.3d 869, 950 N.Y.S.2d 63 and the cases cited by the Second Department which all preclude refiling under CPLR 205(a) where no notice was provided: Yonkers Contracting, 93 N.Y.2d 375, 380 - 381, 690 N.Y.S.2d 512, 516 (1999); Cornwall Yacht Club, Inc. v. Assessor, 110 A.D.3d 1070, 974 N.Y.S.2d 268 (2d Dep't 2013) (court properly dismissed petitions under RPTL 708(3) where petitioner had not served school district with notice and denied cross-motion for leave to refile under CPLR 205(a)); and Wyeth Holdings v. Town of Orangetown, 84 A.D.3d 1104, 924 N.Y.S.2d 108 (2d Dep't 2011) (in 17 granting dismissal the court held that "a dismissal pursuant to RPTL 708(3) operates as a dismissal 'upon the merits,' and, accordingly, the relief afforded by CPLR 205(a) is unavailable"). Thus, the Second Department's Decision is in full compliance with the relevant Court of Appeal's case law requiring denial of the instant appeal. Of further note, in seeking leave to this Court, Appellant argued that the Second Department's decision is in conflict with the Fourth Department case MM 1, LLC v. Lavancher, which allowed refiling under CPLR 205(a) following an RPTL 708(3) dismissal. MM 1, LLC v. Lavancher, 72 A.D.3d 1497, 899 N.Y.S.2d 774 (4th Dep't 2010). However, the Fourth Department's 2010 decision in MM 1 was decided prior to Copley Court and is therefore, no longer good law on the issue of refiling under CPLR 205(a), following an RPTL 708(3) dismissal. Copley Court, 19 N.Y.3d 869, 950 N.Y.S.2d 63; see also, Point I(a), supra. POINT II APPELLANT IMPROPERLY RELIES ON THE MORRIS INVESTORS AND FLEMING DECISIONS While wholly ignoring this Court's decision in Copley Court, Appellant seeks to paint the Second Department's decision as inconsistent with this Court's earlier decision in Morris Investors v. Commissioner of Finance of the City of New York, 69 N.Y.2d 933, 516 N.Y.S.2d 635 (1987) which does not specifically deal with the intersection of RPTL 708(3) and CPLR 205(a). In Morris, the Court 18 allowed plaintiff to reinstitute a proceeding after the original timely proceeding had been dismissed for failure to deposit the challenged tax or post a bond under the NYC Administrative Code, in an action to review a real property tax deficiency assessment. Notably distinguishing Morris Investors from the instant action is the fact that in Morris there was no time limit set for the payment of the taxes or posting of a bond, while in the instant action Westchester Joint was statutorily required to provide notice to the school district within ten (1 0) days. See RPTL 708(3). Furthermore, Morris Investors actually supports the City's position seeking denial ofrefiling under CPLR 205(a) where no notice has been provided to a party. Morris Investors, 69 N.Y.2d 933, 516 N.Y.S.2d 635. While the Morris Investors Court allowed refiling under CPLR 205(a) where the matter was timely and properly commenced, but deficient for failure to timely post a bond, the Court did explain that "CPLR 205(a) is a remedial provision protecting the rights of litigants who have given timely notice of the assertion of their claims". Morris Investors, 69 N.Y.2d 933, 935, 516 N.Y.S.2d 635, 636 (emphasis added). In the instant matter, unlike Morris Investors, Appellant did not provide the School District with any notice of its claims for almost a decade, thus precluding the applicability of CPLR 205(a). 19 Appellant also cites Fleming v. Long Island Railroad, 72 N.Y.2d 998, 534 N.Y.S.2d 371 (1988) which is again distinguishable from the instant action. In Fleming, plaintiff timely and properly served the defendant in the original action, but failed to include in his pleading that at least 30 days had elapsed since the presentment of a demand for settlement of the claim to the authority which had neglected or refused, as required by Public Authorities Law 1276(1 ); such minor pleading issue is wholly different from Westchester Joint's failure to provide the School District with any notice here. Fleming, 72 N.Y.2d 998, 534 N.Y.S.2d 371 (1988). Such a minor and correctable pleading issue as occurred in Fleming is wholly distinguishable from Appellant's failure to provide any notice to the School District for almost a decade. The importance of such notice being recognized by the Court in Copley Court precludes refiling under CPLR 205(a) in this instance. 20 CONCLUSION For the foregoing reasons, Appellant's appeal should be denied. Dated: White Plains, New York October 7, 2015 HARRIS BEACH PLLC By: ~~ f. Ch~cteA_ Darius P. Chafizadeh A. Vincent Buzard Christopher H. Feldman Attorneys for Respondent Assessor of the City of Rye 445 Hamilton Avenue, Suite 1206 White Plains, NY 1 060 1 Phone: (914) 683-1200 Fax: (914) 683-1210 dchafizadeh@harrisbeach.com vbuzard@harrisbeach.com cfeldman@harrisbeach.com 21