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Matter of LaFarge v. Town of Mamakating

Appellate Division of the Supreme Court of New York, Third Department
Jan 7, 1999
257 A.D.2d 752 (N.Y. App. Div. 1999)


January 7, 1999.

Appeal from the Supreme Court (Torraca, J.).

On July 27, 1989, petitioner, the owner of a gravel mine located in the Town of Mamakating, Sullivan County, brought a proceeding pursuant to RPTL article 7 challenging the 1989 tax assessment of a parcel of its real property. Additional proceedings were brought to challenge the 1990, 1991 and 1992 assessments of the same property, as well as the 1992 assessment of a different parcel. These last two petitions were filed on July 22, 1992. During the ensuing years, discovery was conducted and settlement discussions — which evidently proved fruitless — took place. In March 1996, Supreme Court ordered the parties to exchange appraisal reports, for all of the proceedings, on or before July 19, 1996. Petitioner's report was timely filed, but respondent Town of Mamakating sought and obtained an extension of time, pursuant to which it filed September 19, 1996 its report on

Then, on October 3, 1996, respondents sought dismissal of each of the petitions on the ground that no note of issue had been filed within the time period for doing so, as established by RPTL former 718 Real Prop. Tax. The motions were granted and petitioner appeals from that order, as well as from a subsequent order denying its motion for reconsideration.

Although the statute has since been amended, these proceedings — all of which were commenced prior to the amendment — are governed by the earlier version.

The second appeal must be dismissed for, although petitioner suggests otherwise, we find its motion to have been one seeking reargument of Supreme Court's prior decision, the denial of which is not appealable ( see, Spa Realty Assocs. v. Springs Assocs., 213 A.D.2d 781, 783). And, as the Court of Appeals, in Matter of Waldbaum's #122 v. Board of Assessors ( 58 N.Y.2d 818), clearly and unqualifiedly pronounced that "both [the] wording and [the] legislative history" of RPTL former 718 Real Prop. Tax evince an intention that it be "`rigidly applied irrespective of any and all circumstances'" ( id., at 820, quoting Marco v. Sachs, 10 N.Y.2d 542, 550), Supreme Court cannot be faulted for granting respondents' motions for dismissal ( see, Matter of Nuckel v. Assessors of Bd. of Assessment Review, 110 A.D.2d 1020, 1021). Also noteworthy in this regard is the fact that the statute expressly delineates, as an exception to its general premise, that relief may be granted by court order "on good cause shown within [the] four-year period" (RPTL former 718 Real Prop. Tax [emphasis supplied]). Haying explicitly limited the time during which this exception may be invoked, the Legislature must be presumed to have intended that the filing deadline not be judicially extended, even for "good cause", once that time period has elapsed ( see, Patrolmen's Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208-209).

Nor are we persuaded that respondents are estopped from relying on RPTL former 718 Real Prop. Tax, due to their delay in seeking relief thereunder, or because they actively participated in the litigation prior to moving for dismissal. There has been no showing that respondents engaged in the type of misrepresentation or concealment of material facts upon which an estoppel can be predicated ( see, Matter of Hayden v. S W Meat Poultry, 221 A.D.2d 823, 824-825); neither is there any indication that they attempted to deceive petitioner or to prevent it from complying with the statute ( see, Matter of Pherbo Realty Corp. v. Board of Assessors, 104 A.D.2d 1037, 1038, lv denied 65 N.Y.2d 602).

Mikoll, J.P., Crew III, Spain and Graffeo, JJ., concur.

Ordered that the order entered January 3, 1997 is affirmed, with costs.

Ordered that the appeal from the order entered September 22, 1997 is dismissed.

Summaries of

Matter of LaFarge v. Town of Mamakating

Appellate Division of the Supreme Court of New York, Third Department
Jan 7, 1999
257 A.D.2d 752 (N.Y. App. Div. 1999)
Case details for

Matter of LaFarge v. Town of Mamakating

Case Details

Full title:In the Matter of SULLIVAN LaFARGE, a Division of LaFARGE CORPORATION…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 7, 1999


257 A.D.2d 752 (N.Y. App. Div. 1999)
683 N.Y.S.2d 344

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