Volume 9 - Opinions of Counsel SBEA No. 19
Assessment review, small claims (mailing of petitions) - Real Property Tax Law, § 730:
Whether to dismiss a small claims assessment review petition on the ground that copies of the petition were not mailed to local government officials as required is within the discretion of the hearing officer.
Our opinion has been requested concerning the failure of taxpayers to mail copies of small claims assessment review petitions to local government officials.
Subdivision (8) of RPTL, section 730 requires a small claims petitioner to mail a copy of the petition within ten days of the filing of same with the county clerk, to: 1) the clerk of the assessing unit; 2) the clerk of the school district; 3) the county treasurer; and 4) the clerk of the village (if the property subject to review is located in a village). The same subdivision further provides that none of those governmental entities are deemed to have been made a party to the proceeding by reason of such mailing.
This provision and the reported non-compliance of many small claims petitioners has been a significant problem since the inception of the small claims program. The Office of Court Administration (OCA) has included directions to petitioners in this regard in the instructions accompanying the small claims petition form, and Part Five of the petition itself contains a “Certification” section where the petitioner signs a statement which provides, inter alia, that the required mailings have been performed. The requirement is also mentioned in the State Board’s publication, “How to Challenge Your Assessment”.
We are aware of a decision by a State Supreme Court Justice holding that the failure of a petitioner to mail copies of the petition to the assessing unit and the school district was jurisdictionally fatal (Dolan v. City of New Rochelle, Supreme Court, Westchester County, Index No. 2679/84, n.o.r.). Whether other courts would follow the ruling in the Dolan case is unclear, particularly in view of the harsh result in a proceeding which is, by statute, informal (RPTL, §732(2)). For example, consider case law which has evolved out of traditional tax certiorari proceedings under Title 1 of Article 7 of the RPTL. There, section 708 requires that personal service be made on certain specified municipal officers and that a copy of the petition be mailed within 10 days of such service to the clerk of the school district in which the parcel subject to review is located and also to the county treasurer. While the failure on the part of the petitioner to effect service upon a municipal officer specified in section 708 is jurisdictionally fatal (Shanty Hollow Corp. v. Poladian, 23 A.D.2d 132,259 N.Y.S.2d 541 (3d Dept. 1965), aff’d, 17 N.Y.2d 536, 215 N.E.2d 168, 267 N.Y.S.2d 912 (1966)), several courts have concluded that the failure to provide notice to the school district is not jurisdictionally fatal (Magee v. Board of Assessors of Town of Nelson, 49 Misc.2d 499, 268 N.Y.S.2d 61 (S.Ct. Madison Co., 1964), aff’d sub nom., Fieser v. Board of Assessors, 24 A.D.2d 1045, 265 N.Y.S.2d 618 (3d Dept. 1965); Xerox Corporation v. Sanger, 79 Misc.2d 480,360 N.Y.S.2d 161 (S.Ct. Monroe Co., 1974)).
The requirement in tax certiorari proceedings of service on the proper municipal officer specified in section 708 may be analogized to the filing of small claims petitions with the county clerk as required in section 730, since it is that service which commences the proceeding. Similarly, one may analogize the mailing of the petition to the school district and the county treasurer, provided for in section 708, to the mailing of the copies of the small claims petition to the assessing unit, school district and county treasurer provided for in section 730(8), since in both instances mailing satisfies the notice requirement and personal service is not mandated.
We further note that subdivision (3) of section 730 provides that the failure to file the small claims petition with the county clerk within 30 days of the final filing of the assessment roll “shall constitute a complete defense to the petition and the petition must be dismissed.” No similar provision is made regarding the failure to perform the mailing required in subdivision (8).
OCA has taken the position that the disposition of cases involving this question rests in the discretion of the hearing officer. This position is consistent with section 732(4) which provides that:
The hearing officer shall determine all questions of law and fact de novo. (emphasis added)
Given the foregoing and the lack of a clear statutory directive, we agree with OCA, bearing in mind that to deny a petitioner the right to review in such a case may be requiring too strict an adherence to technical rules which seem contrary to the intent of the Legislature that the small claims review procedure be relatively informal.
Accordingly, while it is certainly the assessor’s prerogative to make a motion for dismissal of a small claims petition on the ground that the mailings required by section 730(8) have not been performed, we believe that it is within the hearing officer’s discretion to rule on such a motion.
November 20, 1987