State of New York
Supreme Court : County of Monroe

ROCHESTER COMMUNITY SAVINGS
BANK (40-46 Franklin Street),

Petitioner,
Action No. 1:

Index No. 96/05201

- against -

Action No. 2:

Index No. 96/07484

Respondent.

_______________________________

plus six other cases

ANDREW V. SIRACUSE, J.

Seven actions to review tax assessments are before this Court, and each of them has been commenced twice. At this stage they all present the same issues. All arise from the City of Rochester's 1996-1997 assessment roll, which was filed on May 1, 1996, as directed by the Rochester City Charter. All were commenced within the 30-day statute of limitations for review of assessments by filing on May 30 and service on the respondent on May 31. Proof of service was not filed within 15 days of May 30 as required by CPLR 306-b (a), however, and petitioners' attorneys were apparently ignorant of this oversight until the Corporation Counsel's office wrote to them on or about July 15. Petitioners' attorney then filed proofs of service and, realizing that the initial actions were conceivably dismissed by operation of CPLR 306-b, recommenced each action by the purchase of new index numbers, filing of the petitions, service and filing of proofs of service.

These facts are not in dispute. Both counsel agree as to the timeliness of the initial filing and service, to the tardiness of the filing of the proofs of service, and to the legal effect of CPLR 306-b(a): if proofs of service are not timely filed the actions are deemed dismissed. Both agree that the second set of actions were commenced after the limitations period, although petitioners argue that the City has no authority to file the assessment roll as early as May 1 and to require all petitions by May 31. ¹

Both agree, as well, that the determinative issue in these cases is the relationship between two sections of the CPLR amended when New York adopted a commencement-by-filing system. CPLR 306-b(b) gives litigants 15 additional days to recommence an action brought within the statute of limitations but deemed dismissed for failure to serve or to file proof of service, even if the statute of limitations runs in the interim.² CPLR 205, on the other hand, allows the litigant whose timely action is "terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits" to bring a new action "within six months after the termination", so long as "service upon defendant is effected within such six-month period." If CPLR 205 governs in this case, the petitioners' second set of actions are properly brought. If CPLR 306-b(b) applies, and the petitioners do not have the six months permitted by the other section, then the second set of actions are time-barred.

This issue is a complex one, and requires the court to determine the intention of the legislature as revealed by the rules of statutory interpretation and through legislative history -- approaches which do not always lead to the same conclusion. The City's position comports best with McKinney's Statutes and traditional principles of statutory interpretation, and in the absence of binding authority the Court would be inclined to grant the City's cross-motion to dismiss. After the petitioners filed their motion papers, however, the Appellate Division, Second Department, decided this exact issue in a case indistinguishable from the present one (Matter of Ronald Winston v. Freshwater Wetlands Appeals Board, Village of Scarsdale , 224 AD2d 160). Since the Fourth Department has not ruled on this issue this Court is constrained to follow that decision (see, People v Shakur, 215 AD2d 184; Mountain View Coach Lines v Storms , 102 AD2d 663).

The Second Department explicitly based its decision on statements by the sponsors of the amended CPLR 205 and the new CPLR 306-b:

Considering that both CPLR 205(a) and 306-b(b) provide extension periods, and that both sections fit, we look to rules of statutory construction and to legislative intent to determine whether CPLR 306-b(b) preempts CPLR 205(a). It is a rule of statutory construction that the specific governs over the general (see , McKinney's Statutes § 238, at 404-406; People v Walker, 81 NY2d 661; see also, People v. Jackson, 87 NY2d 782, 790). The rule exists as a means of discerning and advancing legislative intent. But it should not be decisive when there is a contrary pronouncement of legislative intent, particularly one that is expressed with uncommon specificity (see , McKinney's Statutes § 239, at 407-411).

A sponsor's memorandum in support of the new legislation states as follows: "[t]he amendment [to CPLR 205(a) ] would not preclude the six month extension in those instances in which the plaintiff did properly effect service, but then failed to timely file proof of service of process as required by new CPLR 306- b" (see , Alexander, 1996 Supp Prac Commentaries McKinney's Cons Laws of NY, Book 7B, CPLR C205:3, at 64, 66). This is an unusually explicit avowal of legislative intent, that supports the result we reach (see also, Matter of Solomon v. Marks, 164 Misc 2d 387; Magovern v. Cherry Val. Realty Corp. , 166 Misc 2d 75).

In another supporting legislative memorandum, the sponsor states as follows:

"Summary of Provisions

Section 1. Amends CPLR section 205 dealing with termination of an action and creates a technical change necessitated by the amendment to CPLR 306-a in section 4 of the bill. Where a party, that had timely commenced and timely served an action which was subsequently terminated for the reasons set forth in this section seeks to commence a new action, the party would receive no more extra time than the six month period set forth in this section and could not take advantage of an additional 120 days under the amended CPLR 306-a" (Mem of Assemblyman Joseph R. Lentol, Bill Jacket, L 1992, ch 216 ).

The traditional rule, however, is that such statements are admissible to aid in statutory interpretation only if the language of the statute is unclear or the legislative intent cannot be determined otherwise. The sections of McKinney's Statutes cited by the Winston Court in support of its holding that legislative intent may override other principles of statutory interpretation is not germane here; it involves the rules of noscitur a sociis (words commonly employed together) and ejusdem generis (confining general terms to the specific language that precedes them). The latter rule may give way before legislative intent. But this is not an ejusdem generis case. The rule that would appear to control here is McKinney's Statutes § 98: meaning must be given to every part and word of a statute.

CPLR 306-b explicitly provides for the cases before the Court:

If an action dismissed for failure to file proof of service pursuant to this section or for failure to effect proper service was timely commenced, the plaintiff may commence a new action *** within one hundred twenty days (emphasis supplied).

It is hard to see how this can be any clearer, and it is hard to see how the interpretation given CPLR 205 by the Second Department can have any effect but to nullify the language "for failure to file proof of service pursuant to this section". The Court apparently contemplated that possibility without concern:

The respondents argue that CPLR 306-b is a meaningless statute unless it is held to preempt CPLR 205(a). As to this, we note that according to the New York State Senate Introducer's Memorandum in Support, "[I]f the dismissal was for failure to obtain jurisdiction over the defendant, the plaintiff does not get the benefit of the six month period" of CPLR 205(a), but would get the benefit of CPLR 306-b(b). That fact pattern, however, is not before us and there is no need to address it at this time.

There may well be reason behind this nullification; it appears from the statements of the legislators that the result reached in Winston was what the amendments to the CPLR were designed to effect. Nonetheless, it appears to this Court that the Legislature failed to word the amendments so as to bring about the desired result, and had this been a case of first impression this Court would have adhered to a stricter rule of statutory interpretation.

The City, recognizing the impact of Winston , has argued that it is not controlling because of a purported split in Appellate Division cases. The Third Department case of Barsalow v City of Troy (208 AD2d 144), which addressed similar facts, did not mention CPLR 205, and the City suggests that if the Court had there thought the section determinative it would have cited it. However, "[i]t is not the function or obligation of an appellate court *** to seek out and consider errors not claimed to have aggrieved the appellant" (10 Carmody-Wait 2d 70:438, at 473). The briefs and record on appeal in Barsalow show that the application of CPLR 205 was neither briefed nor argued, and no conclusion can be drawn from the Third Department's silence on the subject.

This resolves the cases under consideration. However, the Court wishes to make it clear that it found neither of the other arguments advanced by the petitioners to be of merit. The Court has no authority under CPLR 2004 to extend the time to file proof of service in an action that is deemed dismissed under CPLR 306-b(a). Petitioners' reliance on Bartlett v Gage (166 Misc 2d 317) is unfounded; in Bartlett the issue was whether a second action, timely commenced under CPLR 306-b, should be dismissed because of failure to file proof of service within the second 120-day period. The court read the statute as requiring recommencement within the second 120 days but not deeming the new action dismissed for failure to file proof of service. Because the only defect with the second action was failure to file proof of service, there was an action alive at that point which had not been deemed dismissed. In the present case there is neither an action continuing under CPLR 306-b(a) nor one timely commenced under CPLR 306-b(b); whatever its merits, Bartlett is not on point.

Finally, petitioners argue that the actual deadline for the assessment roll is July 1, and their time to file ends on July 31, because RPTL 516 sets July 1 as the date for the final assessment roll and RPTL 702(2) provides that the limitations clock begins to run from the last date set by law for filing or until notice of the assessment is received, whichever is later. According to petitioners, this takes precedence over the City's scheme of a May 1 filing of the assessment roll.

Petitioners argue that RPTL 2006, a savings clause, merely grandfathered in earlier filing dates in effect in 1977, when the new uniform filing date (then August 1) went into effect. They argue that amendments to the city charter in 1983 ended the city's right to its prior nonconforming schedule. Thus, the city now has to conform to the entire calendar set out in the RPTL, which is very much at variance from the one in the charter.

It is true that the cases cited by petitioners hold that by enacting RPTL 512 at a later time, with its specific deadlines, the legislature rendered RPTL 2006 invalid. These cases, however, deal with counties. The city points out that under the Municipal Home Rule Law counties have less authority to pass laws inconsistent with general statutes. In fact, they have that power only as to the method of correction of assessment rolls, not as to preparation and review of such rolls (§ 10[1][ii][b][6]), while cities have the power over the whole of the field (10[1][ii][c][2]).

Dicta in Stevens Medical Arts Bldg v City of Mount Vernon (72 AD2d 177) strongly support the city's position. Looking at the statute as a whole, there appears to be no intent by the legislature to impose a uniform assessment date on cities. The more reasonable conclusion is that RPTL 512 sets out a uniform procedure that has effect only if duly authorized municipalities have not created their own constitutionally-valid procedures. The City has done so here.

The first actions are dismissed by operation of law, and no order regarding them is necessary. The second set of actions are properly commenced. Counsel for petitioners may prepare the order, without costs or disbursements.

DATED: Rochester, New York
September 27, 1996

Andrew V. Siracuse, J.S.C.

Note 1: This and an argument regarding CPLR 2004 will be treated below, as at oral argument both counsel relied upon arguments arising from CPLR §§ 205 and 306-b.

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Note 2: For actions with a limitations period of more than four months the second action must be commenced within 120 days.

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