Spodek v. New York State Commissioner of Taxation & Finance

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Tax Law § 2016) to review a determination of respondent Tax Appeals Tribunal which sustained a real property transfer gains tax assessment imposed under Tax Law article 31-B.

It is undisputed that the decision of respondent Tax Appeals Tribunal being challenged by petitioner in this proceeding was mailed to him by the Tribunal on November 19, 1992 and that on March 19, 1993, the date the four-month Statute of Limitations expired, petitioner filed the notice of petition and petition with this Court. It is also undisputed that neither respondent Commissioner of Taxation and Finance, the Tribunal nor the Attorney-General were properly served prior to the expiration of the Statute of Limitations. Petitioner, nevertheless, maintains that this proceeding is timely since, in accordance with CPLR 304 and 306-b (b), he filed the notice of petition with this Court prior to the expiration of the Statute of Limitations.

When the Legislature converted New York’s civil practice from a commencement by service to a commencement by *759filing system (see, L 1992, ch 216), it did not indicate whether the commencement by filing provisions apply to proceedings, such as this one pursuant to Tax Law § 2016, which originate in the Appellate Division (see, Education Law § 6510; Labor Law §§ 220, 220-b; Public Health Law § 230-c; Tax Law § 2016). Our examination of the statutes implementing the commencement by filing system discloses that they refer exclusively to actions and proceedings in Supreme and County Courts and make reference to procedures, such as filing the notice of petition with the County Clerk, obtaining an index number and paying the fee required by CPLR 8018 (a), that have no relevance to proceedings originating in this Court (see, CPLR 304, 306-a, 306-b; 22 NYCRR 800.2 [c]). Thus, we conclude, as do the commentators, that the commencement by filing system only applies to actions or special proceedings commenced in Supreme Court, County Court and Surrogate’s Court pursuant to SCPA 102 (see, Alexander, 1994 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C304:l [1994 Pocket Part], at 38; Siegel, NY Prac § 77B [1994 Pocket Part], at 21 [2d ed]; 1 Weinstein-KornMiller, NY Civ Prac fl 304.01).

Having reached this conclusion, we must dismiss the petition due to petitioner’s failure to effect service upon respondents before the expiration of the Statute of Limitations.

Cardona, P. J., Weiss, Yesawich Jr. and Peters, JJ., concur. Adjudged that the petition is dismissed, without costs.