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Matter of Landesman v. Whitton – Case Brief Summary (New York)

In Matter of Landesman v. Whitton (46 AD3d 827, 848 NYS2d 680 [2d Dept 2007]), petitioner failed to properly mail notice of the proceedings and the petition to the superintendent of schools of the affected school district.

Before the trial court, respondent district sought dismissal for such failure, moving pursuant to RPTL 708 (3). Petitioner opposed the motion, arguing inter alia that the motion was untimely pursuant to CPLR 3211 (e). The trial court dismissed the petitions, holding that RPTL 708 (3) required the timely service of the superintendent, and further noted " 'As to the issue of the timeliness of Respondent's Motion to Dismiss, it is clear that the courts have not required a municipality in a tax certiorari proceeding to make a motion to dismiss within the same CPLR 3211 (e) 60-day time constraint as in other types of actions [See e.g., Village Square of Penna, Inc. v. Semon, 290 AD2d 184, 736 NYS2d 539, 541 (3d Dept. 2002), lv. app. dis. 98 NY2d 647, 772 NE2d 607, 745 NYS2d 504 (2002) . . .']." (13 Misc 3d 1216[A], 824 NYS2d 755, 2006 NY Slip Op 51847[U], 4 [Sup Ct, Dutchess County 2006].)

The Second Department affirmed, noting that RPTL 708 (3) does indeed require such service, and the failure to so serve requires dismissal of the petitions.

On the issue of the applicability of CPLR 3211 (e) to the motion to dismiss, the Court stated:

"Since RPTL 712 (1) states that if no answer is served, 'all allegations of the petition shall be deemed denied,' no answer was required. Therefore, CPLR 3211 (e) does not apply to a tax certiorari proceeding (see Matter of Village Sq. of Penna v. Semon, 290 AD2d 184, 186, 736 NYS2d 539 [2002])." (46 AD3d at 828.)