The No Dismissal Provision In Real Property Tax Law Section 712 (1)
In Matter of Abramov v. Board of Assessors (257 AD2d 958), respondents' answer was deemed made and they waited until five months after the return date of the petition to move for dismissal based upon the Statute of Limitations.
Though a defense based on the Statute of Limitations is waived if it is not preserved in the answer or a motion made prior to the time to answer, the court, interpreting the no dismissal provision in Real Property Tax Law 712 (1), held that the defense was not waived.
In effect, when no answer is served, the no dismissal provision relieves the respondent of the negative consequences of failing to plead a defense.
Applying that principal to the facts here, the objection to the failure to serve the school board is not waived by failing to preserve it in an answer.
Respondents, however, are not thereby excused from the ancillary requirement that a motion to dismiss for lack of proper service be made within 60 days after serving the pleading which preserves the objection (see, Matter of Brookview Apts. v. Stuhlman, 278 AD2d 351 [where taxpayer does not timely serve the petition on a school district, the taxing authority may move to dismiss the proceeding if it raises the issue in its answer or makes a timely motion]).