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Department of Taxation and Finance

Volume 8 - Opinions of Counsel SBEA No. 17

Opinions of Counsel index

Assessment review (tax certiorari proceeding) (commencement prior to final roll) - Real Property Tax Law, § 702:

The commencement of a proceeding for judicial review of an assessment pursuant to Article 7, Title 1 of the Real Property Tax Law a short time prior to the completion and filing of the final assessment roll does not render the proceeding jurisdictionally defective.

Subdivision two of section 702 of the Real Property Tax Law provides that a judicial proceeding to review an assessment “shall be commenced within thirty days after the final completion and filing of the assessment roll containing such assessment” (emphasis added). We have been asked whether such a proceeding should be dismissed because it was commenced three days before the completion and filing of the final assessment roll.

In County of Broome v. Eronimous, 68 A.D.2d 988, 414 N.Y.S.2d 812 (3d Dept. 1979), the Court refused to dismiss as untimely a certiorari proceeding commenced nine days prior to the completion of the final assessment roll. The court reasoned that the word “within” fixes the limit beyond which action may not be taken, rather than setting the first point in time at which a certiorari proceeding must be commenced. The Court also found that commencement of the proceeding nine days before the final roll was completed did not prejudice the interested municipalities.

This is consistent with the long standing principle that the law relating to review of assessments is remedial in character and should be liberally construed, to the end that the taxpayer’s right to have his assessment reviewed should not be defeated by a technicality (Great Eastern Mall, Inc. v. Condon, 36 N.Y.2d 544, 330 N.E.2d 628, 369 N.Y.S.2d 672 (1975); People ex rel. New York City Omnibus Corp. v. Miller, 282 N.Y. 5, 24 N.E.2d 722 (1939)).

Accordingly, in our opinion, a tax certiorari proceeding should not be dismissed simply because it was commenced a few days prior to the completion of the final assessment roll.

March 13, 1984