IN RE: NEW YORK STATE ELECTRIC & GAS CORPORATION

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

IN RE: NEW YORK STATE ELECTRIC & GAS CORPORATION, Respondent, v. BOARD OF ASSESSORS OF THE TOWN OF VESTAL, Appellant.

Decided: July 26, 2001

Before:  CARDONA, P.J., MERCURE, CREW III, SPAIN and CARPINELLO, JJ. Levene, Gouldin & Thompson (Margaret J. Fowler of counsel), Binghamton, for appellant. Hinman, Howard & Kattell L.L.P. (Paul T. Sheppard of counsel), Binghamton, for respondent.

Appeal from an order of the Supreme Court (Relihan Jr., J.), entered June 7, 2000 in Broome County, which, in a proceeding pursuant to RPTL article 7, denied respondent's motion to dismiss the petition for failure to file proof of service.

On July 21, 1997, petitioner commenced this proceeding pursuant to RPTL article 7 seeking judicial review of a tax assessment of real property located in the Town of Vestal, Broome County, by filing the notice of petition and petition in the office of the Broome County Clerk and by serving the same upon the Town Clerk.   On July 30, 1997, proof of service upon respondent was filed in the office of the Broome County Supreme and County Court Clerk, but not with the Broome County Clerk.   In September 1999, respondent moved to dismiss the petition on the ground that petitioner failed to file proof of service with the Broome County Clerk in accordance with CPLR former 306 b(a).   Supreme Court denied the motion and this appeal ensued.

We affirm, albeit for reasons different than those expressed by Supreme Court.   CPLR former 306-b (a) provided that proof of service of a notice of petition and petition in a special proceeding, such as here, must be filed not later than 15 days after the date upon which the applicable Statute of Limitations expired, and the failure to so file resulted in an automatic self-executing dismissal of the proceeding (see, e.g., Williamson v. Edwards, 273 A.D.2d 230, 231, 710 N.Y.S.2d 252). It is uncontroverted that petitioner did not file proof of service with the Broome County Clerk and, as such, was not in literal compliance with the statutory mandate.   It is equally uncontroverted, however, that petitioner timely filed proof of service with the Broome County Supreme and County Court Clerk.   In our view, proof of service with the Supreme and County Court Clerk is a mere irregularity and not a jurisdictional defect (see, CPLR 2001).

ORDERED that the order is affirmed, without costs.

CREW III, J.

CARDONA, P.J., MERCURE, SPAIN and CARPINELLO, JJ., concur.

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