MR SUBB INC v. SHARON MARTIN (2015)

519145/

519147/

MEMORANDUM AND ORDER

Calendar Date:  February 17, 2015

Appeals from six orders of the Supreme Court (Ceresia, J.), entered April 16, 2014 in Rensselaer County, which, among other things, in proceedings pursuant to RPTL article 7, denied respondents' motions to dismiss the petitions.

Petitioners attempted to commence these six proceedings pursuant to RPTL article 7 seeking, among other things, a reduction in their respective tax assessments on parcels of land located in the City of Troy, Rensselaer County.   Although RPTL 708(1) required personal service of the subject petitions, petitioners served the respective notices of petitions and petitions via certified mail.   Respondents returned the petitions—advising that they deemed such pleadings to be nullities—and thereafter moved to dismiss the petitions pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.   Petitioners opposed respondents' motions and cross-moved for extensions of time in which to serve the underlying petitions.   Supreme Court denied respondents' motions, finding that the defective service could be disregarded, and denied petitioners' cross motions as moot.   This appeal by respondents ensued.

Initially, petitioners' claim that respondents waived the defect in service is belied by the record.   Turning to the merits, RPTL 708(1) required petitioners to personally serve the designated assessment officer, which they admittedly failed to do, and—as this Court previously has observed—“the statute ․ does not permit service by certified mail” (Matter of Wyeth Ayerst Pharms., Inc. v Assessor of Town of Champlain, 24 AD3d 849, 850 [2005] ).   Further, the case law makes clear that “CPLR 2001 may be used to cure only a technical infirmity” (Ruffin v. Lion Corp., 15 NY3d 578, 582 [2010] [internal quotation marks and citation omitted] ), and the Court of Appeals has cautioned that “simply mailing the [relevant pleadings] to [a] defendant ․ would present more than a technical infirmity, even if [the] defendant actually receives the [pleadings], inasmuch as [mailing] in general introduce[s a] greater possibility of failed delivery” (id. at 583).   In this regard, we reject petitioners' assertion that, because the relevant pleadings were served via certified mail, as opposed to first class mail, the admitted service defect may be said to fall within the realm of a technical infirmity.   Simply put, inasmuch as petitioners' service was defective, Supreme Court should have granted respondents' motions to dismiss the petitions.   In light of this conclusion, petitioners' cross motions are not moot, and we remit these matters to Supreme Court in order to address such motions on the merits.

McCarthy, J.P., Devine and Clark, JJ., concur.

ORDERED that the orders are modified, on the law, without costs, by reversing so much thereof as denied respondents' motions;  motions granted and matters remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision;  and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court