In Matter of Spodek v. New York State Commr. of Taxation & Fin. (85 NY2d 760 [1995] the Court of Appeals was presented with the issue of whether the CPLR's commencement by filing provisions, CPLR 304 as amended in 1992, applied to a Tax Law 2016 proceeding originating in the Appellate Division. On the last day the statute of limitations expired, the petitioner had filed with the Clerk of the Appellate Division a notice of petition and petition, but never properly served the respondents. Respondent Commissioner moved to dismiss the proceeding as time barred. Rejecting petitioner's argument that the proceeding was timely commenced by filing, the Appellate Division dismissed the petition for petitioner's failure to serve respondents before the expiration of the statute of limitations. The Appellate Division concluded that the new filing system only applied to actions or special proceedings commenced in Supreme Court, County Court or Surrogate's Court. Reversing the Appellate Division on this point, the Court of Appeals concluded that CPLR 304, as amended, applied to a special proceeding commenced in accordance with Tax Law 2016 in the Appellate Division for two reasons. First, the Court stated that section 2016 specifically provided that a proceeding should be commenced " 'in the appellate division of the supreme court, third department,' 'in the manner provided by article seventy eight of the civil practice law and rules.' " ( Spodek v. New York State Commr. of Taxation & Fin., supra at 764.) The Court thus concluded that section 2016 "does not mandate or suggest that commencement by service is still required. Rather, the statute provides simply that proceedings are to be commenced in the same manner as under CPLR article 78." (Id.) The Court then recognized that by reason of the 1992 amendments to CPLR 304, such article 78 proceedings were now to be commenced by filing. As a result, citing to CPLR 101, the Court found that no inconsistency existed between Tax Law 2016 and CPLR 304. ( Id. at 765.) Second, the Court reasoned that although the new filing provisions specifically referred to proceedings commenced only in Supreme Court and County Court, this fact did not compel the conclusion that the Legislature intended to exclude a Tax Law 2016 proceeding from the scope of CPLR 304. The Court recognized that there was a lack of legislative intent or guidance in regards to CPLR 304 and special proceedings originating in the Appellate Division. However, the Court noted that in 1994, subsequent to the amendment of CPLR 304, the Legislature was required to amend several statutes such as Real Property Tax Law 702 (3) and 704 (1), which specifically contained provisions that required special proceedings authorized thereunder to be commenced by service, in order to bring them in conformance with the new CPLR 304. The Court stated that the Legislature was acting in response to trial court decisions that held CPLR filing requirements inapplicable because the statutes at issue contained specific references to commencement by "service." The Court found that the 1994 "corrective" amendments were indicative of the Legislature's intent that all actions and proceedings not specifically excluded should come under the operation of the 1992 Commencement by Filing Act. ( Id. at 764-765.) Thus, in the absence of inconsistent provisions and due to the 1994 amendments, the Court inferred a legislative intent that Tax Law 2016 proceedings should be governed by CPLR 304. In view of the foregoing, the Spodek Court held that the petitioner's proceeding was timely commenced by filing, but nonetheless affirmed the Appellate Division's dismissal of the proceeding due to petitioner's failure to effect proper service. ( Id. at 766.) But what is more important in Spodek is that the Court of Appeals specifically recognized that even though the Legislature has expanded the reach of the commencement by filing rule, its reach is limited where, as in this instance, express statutory provisions call for commencement by service. The Court noted that in such circumstances, it is the Legislature not the judiciary, that must bring such statutory provisions in line with CPLR 304.