IN RE: Leonid G. GARTH (2008)

Supreme Court erred in denying respondent's motion to dismiss the petition in this proceeding commenced pursuant to RPTL article 7 based on petitioner's failure to specify the time and place of the hearing on the petition in the notice of petition, as required by CPLR 403(a) (see Matter of Niagara Mohawk Power Corp. v. Town of Tonawanda Assessor, 309 A.D.2d 1251, 765 N.Y.S.2d 547).  “[T]he filing and service of a notice of petition [in a tax certiorari proceeding] lacking a return date is jurisdictionally defective” (id. [internal quotation marks omitted] ).   Contrary to petitioner's contention, CPLR 304 does not require a different result.   We previously “invite[d] the Legislature to consider amending RPTL 704 to permit commencement of a tax certiorari proceeding in the same manner” as that permitted for commencing a special proceeding pursuant to CPLR 304, by filing the petition alone (Matter of National Gypsum Co., Inc. v. Assessor of Town of Tonawanda, 8 A.D.3d 953, 954, 778 N.Y.S.2d 591, affd. 4 N.Y.3d 680, 797 N.Y.S.2d 809, 830 N.E.2d 1137), but the Legislature has not done so.   We therefore reverse the order insofar as appealed from, grant respondent's motion and dismiss the petition.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed.

MEMORANDUM: