The following e-filed documents, listed by NYSCEF document number (Motion 002) 19, 20, 21, 22, 23, 24, 25 were read on this motion to/for DISMISS. In this tax certiorari proceeding, the Tax Commission of the City of New York and the Assessment Review Commission of the City of New York (“Respondents”) move for an order dismissing the Real Property Tax Law (“RPTL”) Article 7 Amended Petition (“Amended Petition”) of Francis Kombarakaran, Pauline Fernandes and Gregory Egleston (“Petitioners”) as to the 2021/2022 tax year with prejudice, pursuant to CPLR 3211(a)(2), (5), and (7). Petitioners oppose the motion. Petitioners timely filed a Petition to challenge the 2020/2021 assessed value of two condominium units located at 15 Broad Street in the County, City and State of New York (Block 26, Lot 1296, and Block 26, Lot 1297). Petitioners then filed an Amended Petition on October 28, 2021 which included the 2021/2022 tax year. Real property tax assessments are annual determinations of the value of real property made by the New York City Department of Finance (RPTL §102[2]; NY City Charter §1506). Judicial proceedings to review a real property tax assessment are brought pursuant to Article 7 of the RPTL by the filing of a Verified Petition (see RPTL §700, 706(1); NY City Charter §166; Administrative Code of the City of NY §11-231). Prior to commencing a tax certiorari proceeding, Article 7 of the RPTL requires a petitioner to exhaust all administrative remedies by timely submitting an application to the New York City Tax Commission (“Tax Commission”) (RPTL §706[2]; NY City Charter §163; 19 RCNY §37-01). Such an application must be filed between January 15 and March 1 in the year being challenged, and if an application has not been decided by the Tax Commission by May 25 of that year, the assessment is deemed the final determination of the Tax Commission and the petitioner may commence an Article 7 proceeding (NY City Charter §165). An Article 7 proceeding must be commenced before October 25 of the year in question (id. at §166). Respondents acknowledge that Petitioners timely filed the Article 7 proceeding for the 2020/2021 tax year, however they contend that the 2021/2022 Article 7 proceeding was not properly commenced by filing an Amended Petition to the 2020/2021 tax year proceeding. In addition, they assert that the Amended Petition is not timely as to the 2021/2022 tax year, as it was filed on October 28, 2021, after the October 25 deadline. They therefore contend the Court lacks subject matter jurisdiction as to the 2021/2022 tax year and the Amended Petition must be dismissed as to that year. Petitioners claim they timely filed with the Tax Commission for the 2021/2022 tax year. They note that at the time they filed the Amended Petition, they were in ongoing negotiations with Respondents regarding the 2020/2021 tax year. Petitioners’ counsel received an email from the Tax Commission with a copy of their Notice of Determination as to the 2021/2022 tax year dated October 28, 2021. The Notice indicated that there had been a September 27, 2021 hearing date and that a final determination had been made with no change in the assessment. Petitioners contend they were not notified of the hearing date. After receiving the Notice, Petitioners filed the Amended Petition to “include” the 2021/2022 tax year with the 2020/2021 tax year. Petitioners assert that the filing of the Amended Petition was procedurally proper. The Court has found that that there is no supporting authority for the proposition that an Amended Petition can be filed to add an additional tax year to a previously commenced Article 7 proceeding (see Matter of Aymes v. Tax Commn. of the City of NY, 2013 NY Slip Op 30621[U], *5 (Sup Ct, New York County 2013). Under §163(f) of the New York City Charter, application to the Tax Commission for a specific year must be filed within a given time period and §166 requires the commencement of a proceeding for the Court to review that determination. “The statutory scheme clearly contemplates the filing of a separate petition for each tax year” (Aymes at *6). Thus, Petitioners cannot challenge their assessment for one tax year by way of an amended petition to a proceeding for an earlier year. Even were this Court to permit Petitioners to add a tax year by way of an amended petition, their challenge to the 2021/2022 tax year assessment would have to be dismissed. In accordance with New York City Charter §166, a petition in a RPTL Article 7 tax certiorari proceeding must be filed by the 25th of October following the time when the determination the petitioner seeks to review was made. Failure to commence the action within the specified time renders it time barred (78 S. First St. Hous. Dev. Fund Corp. v. Crotty, 75 NY2d 982, 984 [1990], revg on dissenting mem of Milonas, J., 150 AD2d 218, 220-222; G.A.D. Holding Co. v. City of NY Dept. of Fin., Real Prop. Assessment Bur., 192 AD2d 441, 442 [1st Dept 1993]). The failure to serve and file the petition “within such [specified] time shall constitute a complete defense to the petition and the petition must be dismissed” (RPTL §702[3]). Petitioners’ claim that they were not notified of the Tax Commission’s hearing and that they received the final determination after the deadline is unavailing given that a challenged assessment is deemed final on May 25 in the year that is being challenged (NY City Charter §165]. Accordingly, Respondents’ motion to dismiss is granted due to Petitioners’ failure to file within the prescribed period. For the reasons set forth herein, it is ORDERED that the motion to dismiss is granted with prejudice and the claims as to the 2021/2022 tax year contained in the Amended Petition are dismissed. This constitutes the Decision and Order of the Court. Dated: July 21, 2022
