Buffalo Niagara Business Park, LLC v. Board of Assessment Review

Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered August 20, 2013 in a proceeding pursuant to RPTL article 7. The order granted the motions of respondents and intervenor to dismiss.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order that, inter alia, granted the motions of respondents and intervenor to dismiss the petition in this tax certiorari proceeding pursuant to the Real Property Tax Law article 7. On appeal, petitioner contends that Supreme Court erred in granting the motions because the petition was timely filed and service was proper. We reject that contention. It is undisputed that petitioner never served the original petition on any party herein and, pursuant to RPTL 702 (3), the failure to file and serve the petition “shall constitute a complete defense to the petition and the petition must be dismissed.” In view of our decision, we need not address petitioner’s remaining contentions.