IN RE: Application of Charles FRIDMAN (1997)

Petition seeking review of a determination of an administrative law judge of the New York City Tax Appeals Tribunal, dated September 25, 1996, that a transfer of real property from petitioner to another individual was not tax exempt, unanimously dismissed, without costs.

 The petition must be dismissed for failure to exhaust administrative remedies (see, Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560).   Only a determination by the New York City Tax Appeals Tribunal, sitting en banc to review a determination by one of its administrative law judges, is reviewable under CPLR article 78 (New York City Charter § 171[b];  see also, Administrative Code of City of New York §§ 11-2107, 11-2110;  CPLR 7801[1] ).   In the absence of a timely request by the taxpayer for such en banc review, the determination of the administrative law judge, although deemed the final decision of the Tribunal, “shall not be subject to judicial review” (N.Y. City Charter § 169 [d];  see, Matter of Liebman v. Shaw, 223 A.D.2d 471, 637 N.Y.S.2d 88).   We would also note that under Administrative Code § 11-2107, a taxpayer may not commence a CPLR article 78 proceeding unless he or she first deposits the tax sought to be reviewed, with penalties and interest, or an equivalent undertaking, with the Commissioner of Finance, which petitioner has not done.

Motion to dismiss petition granted.

MEMORANDUM DECISION.