ADDITONAL CASES Medline Industries, Inc. Petitioner v. The Assessor for the City of Glens Falls, the board of Assessment Review for the City of Glens Falls and The City of Glens Falls, NY, Respondents; EF2021-69272 DECISION AND JUDGMENT On July 8, 2020, petitioner Medline Industries, Inc. — represented by Kevin R. MacLeod, Esq. of Speno MacLeod, PLLC — commenced an RPTL article 7 proceeding to challenge the 2020 assessed value of its property located at 10 Glens Falls Technical Park in the City of Glens Falls, Warren County (hereinafter proceeding No. 1). On July 13, 2020, the notice of petition and petition were personally served on respondents. The notice of petition and petition were then mailed to the Warren County Treasurer and the superintendent of the Glens Falls City School District (hereinafter the City School District) on July 23, 2020. Petitioner subsequently discovered that the property is located in the Glens Falls Common School District (hereinafter the Common School District), and not the City School District. To that end, the notice of petition and petition were mailed to the superintendent of the Common School District on July 28, 2020. On July 31, 2020, Claudia K. Braymer, Esq. sent correspondence advising of her representation of the Common School District and requesting that all “[c]orrespondence, pleadings, motions and other papers regarding the…matter…be served upon [her] firm.” On July 21, 2021, petitioner — represented by Marc W. Brown, Esq. of Goldberg Segalla LLP — commenced an RPTL article 7 proceeding to challenge the 2021 assessed value of its property (hereinafter proceeding No. 2). On July 22, 2021, the notice of petition was personally served on respondents. On July 28, 2021, the notice of petition and petition were mailed to the Warren County Treasurer and — once again — to the City School District. An amended notice of petition and petition were then mailed to the Warren County Treasurer and the Common School District on August 4, 2021.1 On August 18, 2021, a consent to change attorneys form was executed whereby Goldberg Segalla, LLP was substituted as counsel for petitioner in proceeding No. 1. This form was then filed on October 1, 2021. Presently before the Court is (1) respondents’ motion to dismiss proceeding Nos. 1 and 2 under RPTL 708 (3) based upon petitioner’s failure to give timely notice to the superintendent of the Common School District; and (2) petitioner’s cross motion for an Order excusing its failure to give timely notice to the superintendent of the Common School District in proceeding Nos. 1 and 2 for good cause under RPTL 708 (3) or, alternatively, excusing such failure under CPLR 2001. “‘Pursuant to RPTL 708 (3), within 10 days of the service of the notice of petition and [the] petition on [the tax assessors of] a municipality in a tax certiorari proceeding, a petitioner must mail a copy of the same documents to the superintendent of schools of ‘any school district within which any part of the real property on which the assessment to be reviewed is located’” (Matter of Westchester Joint Water Works v. Assessor of City of Rye, 27 NY3d 566, 570 [2016], quoting RPTL 708 [3]; accord Matter of DP Fuller Family LP v. City of Canandaigua; 207 AD3d 1220, 1221 [4th Dept 2022]). “Failure to strictly comply with [this] notice requirement[] ‘shall result in the dismissal of the petition, unless excused for good cause shown’” (Matter of Highbridge Dev. BR, LLC v. Assessor of the Town of Niskayuna (121 AD3d 1324, 1325 [3d Dept 2014], quoting RPTL 708 [3]). Turning first to the cross motion, petitioner contends that the mistake should be excused under RPTL 708 (3) for good cause, as the “error [was] simply a geographical and factual mistake [resulting from] the existence of two school districts with very similar names that, in fact, service the same city.” Petitioner further contends that the mistake was made twice because, when proceeding No. 2 was commenced in July 2021, Goldberg Segalla had not yet been substituted as counsel in proceeding No. 1 and “was unaware of the fact that the school district relevant to the [property] was the Common School District and not the City School District.” Petitioner relies heavily on the determination in Matter of Harris Bay Yacht Club, Inc. v. Town of Queensbury (46 AD3d 1304 [3d Dept 2007]), wherein the Third Department states as follows: “Turning…to the issue of whether petitioner demonstrated good cause under RPTL 708 (3), we hold, under the particular facts of this case, that it has. Petitioner’s attorneys mistakenly concluded that the property — located within the Town of Queensbury and not in the Village of Lake George — was within the Queensbury Union Free School District, rather than the [Lake George Central School District]. This is not a case of pure law office failure involving either no attempt to accomplish the mailing or a misreading of the applicable statute, resulting in mailing to the wrong party. Instead, here petitioner made a good faith effort to comply with the statute but, in doing so, made a factual, geographical mistake with no apparent prejudice to the district. Under these circumstances, we hold that petitioner has demonstrated good cause sufficient to excuse the timely, but improper, mailing” (id. at 1306 [citations omitted]). Alternatively, petitioner contends that its mistake should be excused under CPLR 2001, which provides that “[t]he [C]ourt may permit a mistake, omission, defect or irregularity…to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” Insofar as the motion is concerned, respondents contend that petitioner’s failure to properly identify the Common School District not once — but twice — cannot be excused under RPTL 708 (3) for good cause and both proceedings must be dismissed. Respondents rely primarily upon the determination in Matter of Highbridge Dev. BR, LLC v. Assessor of the Town of Niskayuna (supra), wherein the Third Department states as follows: “Supreme Court properly dismissed the 2010 proceeding for failure to comply with RPTL 708 (3). It is undisputed that petitioner failed to serve a copy of the 2010 notice of petition and petition upon the superintendent of [the South Colonie Central School District (hereinafter SCCSD)], the school district within which the subject property is located, within 10 days of service of the petition upon the Assessor, as required by RPTL 708 (3). Failure to strictly comply with the statute’s notice requirements shall result in the dismissal of the petition, unless excused for good cause shown. No such showing has been made here. Petitioner was aware that SCCSD was the proper school district, having previously served SCCSD with the 2008 petition and engaged in litigation with it in connection with that proceeding, and the mistake or omission of…petitioner’s attorney does not constitute good cause shown within the meaning of RPTL 708 (3) to excuse…petitioner’s failure to comply. Nor may noncompliance with the statute be excused on the ground that SCCSD has not been prejudiced thereby” (id. at 1325 [internal quotation marks, brackets and citations omitted]). Under the circumstances, the Court finds both Matter of Harris Bay Yacht Club, Inc. v. Town of Queensbury (supra) and Matter of Highbridge Dev. BR, LLC v. Assessor of the Town of Niskayuna (supra) to be instructive. Specifically, in applying the reasoning set forth in Matter of Harris Bay Yacht Club, Inc. v. Town of Queensbury (supra), petitioner’s failure to serve the correct school district in proceeding No. 1 should be excused for good cause under RPTL 708 (3). In this regard, petitioner attempted to serve the correct school district in accordance with RPTL 708 (3), but — under the mistaken belief that the City School District was the only district in Glens Falls — it served the wrong school district. Once petitioner was made aware of the mistake, it was promptly corrected with the notice of petition and petition being sent to the Common School District only five days after the deadline specified in RPTL 708 (3). Indeed, the untimeliness of service was not even mentioned in the July 31, 2020 correspondence sent by counsel for the Common School District. Petitioner thus made a good faith effort to comply with the statute in 2020 “but, in doing so, made a factual, geographical mistake with no apparent prejudice to the district” (Matter of Harris Bay Yacht Club, Inc. v. Town of Queensbury, 46 AD3d at 1306). That being said, in applying the reasoning set forth in Matter of Highbridge Dev. BR, LLC v. Assessor of the Town of Niskayuna (supra), petitioner’s failure to serve the Common School District in proceeding No. 2 should not be excused for good cause under RPTL 708 (3). Upon the commencement of proceeding No. 2, petitioner — having corrected its mistake in proceeding No. 1 — was inarguably aware that its property was located within the Common School District. Petitioner should have communicated this fact to Goldberg Segalla prior to the commencement of proceeding No. 2. Moreover, Goldberg Segalla — which was substituted as counsel for petitioner in proceeding No. 1 shortly after commencing proceeding No. 2 — presumably reviewed proceeding No. 1 prior to commencement and should have been aware of the location of the property in any event. Given these facts, the mistake or omission in proceeding No. 2 does not constitute good cause to excuse petitioner’s failure to comply with RPTL 708 (3) (see Matter of Champlain Ctr. N. LLC v. Town of Plattsburgh, 165 AD3d 1440, 1441-1442 [3d Dept 2018]; Matter of Highbridge Dev. BR, LLC v. Assessor of the Town of Niskayuna, 121 AD3d at 1325; Matter of Wyeth Holdings Corp. v. Assessor of the Town of Orangetown, 84 AD3d 1104, 1106 [2d Dept 2011]). Briefly, the Court must also note that petitioner cannot rely on CPLR 2001, with the Court of Appeals having emphasized that “‘[a]s a general rule, there should be no resort to the provisions of the CPLR in instances where the [RPTL] expressly covers the point in issue’” (Matter of Westchester Joint Water Works v. Assessor of the City of Rye, 27 NY3d at 575, quoting W.T. Grant Co. v. Srogi, 52 NY2d 496, 514 [1981]; accord Matter of DP Fuller Family LP v. City of Canandaigua; 207 AD3d at 1224; see CPLR 101). Furthermore, “‘noncompliance with the statute [cannot] be excused as a mere technicality’” ( Matter of DP Fuller Family LP v. City of Canandaigua; 207 AD3d at 1228, quoting Matter of MM1, LLC v. LaVancher, 45 AD3d 1481, 1482 [4th Dept 2007]). Based upon the foregoing, respondents’ motion is granted to the extent that proceeding No. 2 is dismissed, and petitioner’s cross motion is granted to the extent that late service upon the superintendent of the Common School District in proceeding No. 1 is excused for good cause. The motion and cross motion are otherwise denied. Therefore, having considered in proceeding No. 1 NYSCEF document Nos. 11 through 43, and having considered in proceeding No. 2 NYSCEF document Nos. 13 through 44, 48 and 49, and oral argument having been heard on April 21, 2023 with Marc W. Brown Esq. appearing on behalf of the petitioner, Karla Williams Buettner, Esq. appearing on behalf of respondents, and Claudia K. Braymer Esq. appearing on behalf of the Glens Falls Common School District, it is hereby ORDERED that respondent’s motion is granted to the extent that proceeding No. 2 is dismissed; and it is further ORDERED that petitioner’s cross motion is granted to the extent that late service upon the Superintendent of the Glens Falls Common School District in proceeding No. 1 is excused for good cause; and it is further ORDERED that the motion and cross motion are otherwise denied. The above constitutes the Decision and Order of this Court. The original of this Decision and Order has been e-filed by the Court. Counsel for petitioner is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: April 27, 2023
