Volume 9 - Opinions of Counsel SBEA No. 48
Assessment review, small claims (time for filing petition) - General Construction Law, § 20; Real Property Tax Law, §§ 730, 732:
A petition for small claims assessment review must be filed within thirty days of the completion and filing of the final assessment roll. Where one assessing unit completes and files its final assessment roll subsequent to the date set by law for such filing, this does not operate to extend the time for filing petitions relative to other assessing units in the same county which have timely filed final assessment rolls. The timeliness of any petition is a question which must be determined by the hearing officer.
We have been asked whether the fact that one town in a county filed its final assessment roll on July 6 would operate to extend the small claims filing deadline for all assessing units in the county.
Section 730(3) of the RPTL prescribes the period for filing small claims petitions:
The petition for review pursuant to this title shall be filed within thirty days after the completion and filing of the final assessment roll containing such assessment...in accordance with the rules promulgated pursuant to section seven hundred thirty-seven of this title....For the purposes of this section an assessment roll shall not be considered finally completed and filed until the last day provided by law for the filing of such assessment roll or until notice thereof has been given as required by law, whichever is later. Failure to file the petition within such time shall constitute a complete defense to the petition and the petition must be dismissed.
Section 20 of the General Construction Law provides that the first day of counting the thirty days commences with the day following that on which the final completion and filing occurred. Thus, it is quite clear that the filing deadline must be determined on an assessing unit by assessing unit basis, and it is possible that each assessing unit in a county could have a different limitations period depending on when the respective final assessment roll was filed and the required notice published (RPTL, §516).
In the case of an assessing unit in which the final assessment roll is completed and filed on July 1, the first day of counting commences on the day following that date, and the last day to file petitions would be July 31. In an assessing unit in which the final assessment roll is completed and filed on July 6, the period commences on July 7 and the final day for filing would be August 5.
We also note that the Rules of the Chief Administrator of the Courts provide that a petition may be filed by mail, and that in such case a petition is timely filed if it bears a postmark within the applicable filing period (22 NYCRR 202.58). Thus, it is possible that a petition could be received in the county clerk’s office subsequent to the last date for filing and, nonetheless, be timely filed, provided it was mailed on or before that last day.
As is evident from the foregoing, the issue of whether a particular petition is timely filed may be a rather complicated matter requiring determination of facts (e.g., when the final assessment roll was filed and notice published) and application of law. Therefore, it is the hearing officer who must rule on the question of whether a particular petition is timely filed (RPTL, §732(4)). The county clerk is merely to accept petitions for filing with the applicable fee, stamp them as received and forward them to a hearing officer. The county clerk has no responsibility or authority to review the timeliness of any petition. Further, the Office of Court Administration has advised the county clerks that they have no discretion but to accept each and every small claims petition offered for filing provided there are enough copies (3) and the filing fee ($25) is paid. If the clerk wishes to be helpful to a taxpayer and suggest that the filing deadline has passed and that the petition will not be timely, this is certainly commendable, but is advisory only.
Finally, it is the responsibility of the assessing unit to raise the issue of timeliness at the hearing, and the responsibility of the hearing officer to make the ultimate determination.
September 12, 1990