IN RE: BUFFALO NIAGARA BUSINESS PARK (2014)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: BUFFALO NIAGARA BUSINESS PARK, LLC, PETITIONER–APPELLANT, v. BOARD OF ASSESSMENT REVIEW FOR CITY OF BUFFALO, ASSESSOR OF CITY OF BUFFALO, CITY OF BUFFALO, RESPONDENTS–RESPONDENTS, AND COUNTY OF ERIE, INTERVENOR–RESPONDENT.

CA 13–01990

Decided: June 13, 2014

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.

ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF COUNSEL), FOR PETITIONER–APPELLANT. TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CAVETTE A. CHAMBERS OF COUNSEL), FOR RESPONDENTS–RESPONDENTS. MOSEY PERSICO LLP, BUFFALO (MARGARET A. HURLEY OF COUNSEL), FOR INTERVENOR–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order that, inter alia, granted the motions of respondents and intervenor to dismiss the petition in this tax certiorari proceeding pursuant to the Real Property Tax Law article 7. On appeal, petitioner contends that Supreme Court erred in granting the motions because the petition was timely filed and service was proper. We reject that contention. It is undisputed that petitioner never served the original petition on any party herein and, pursuant to RPTL 702(3), the failure to file and serve the petition “shall constitute a complete defense to the petition and the petition must be dismissed.” In view of our decision, we need not address petitioner's remaining contentions.

Frances E. Cafarell

Clerk of the Court

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