HOMES, INC. v. RAMAPO, 69 N.Y.2d 901 (1987)

508 N.E.2d 927, 516 N.Y.S.2d 193

AIRMONT HOMES, INC., Appellant, v. TOWN OF RAMAPO et al., Respondents. (Proceeding No. 1.) HILLCREST ECKERSON CORP., Appellant, v. TOWN OF RAMAPO et al., Respondents. (Proceeding No. 2.) ROCKLAND HOMES, INC., Appellant, v. TOWN OF RAMAPO et al., Respondents. (Proceeding No. 3.) ERIC BERGSTOL et al., Appellants, v. TOWN OF RAMAPO et al., Respondents. (Proceeding No. 4.) CITIZENS REALTY DEV. CORP., Appellant, v. TOWN OF RAMAPO et al., Respondents. (Proceeding No. 5.) BEN ASH et al., Appellants, v. TOWN OF RAMAPO et al., Respondents. (Proceeding No. 6.) MILTON B. SHAPIRO et al., Appellants, v. TOWN OF RAMAPO et al., Respondents. (Proceeding No. 7.)

Court of Appeals of the State of New York.Argued March 20, 1987
Decided April 23, 1987

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Timothy J. Sullivan, J.

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Milton B. Shapiro for appellants.

Samuel Blecher, Town Attorney (Arnold Becker and Mitchell Schecter of counsel), for respondents.

MEMORANDUM.

The order of the Appellate Division should be reversed and the motions to dismiss the proceedings denied.

Petitioners commenced these proceedings in August 1976 pursuant to article 7 of the Real Property Tax Law. Respondent Town of Ramapo did not answer the petitions, relying instead on the automatic statutory denial of petitioners’ allegations (RPTL 712
[1] [if respondent fails to serve an answer within the required time, at least five days prior to the return date unless extended, all allegations shall be deemed denied]). By motion returnable January 11, 1985, respondent sought ex parte relief pursuant to RPTL 718 to dismiss the proceedings for failure to prosecute.

Although the courts below correctly recognized that the proceedings could not be dismissed pursuant to RPTL 718 because they were commenced prior to the effective dates of the statute’s enactment (see, L 1977, ch 152, § 2 [eff Jan. 1, 1978]; L 1976, ch 428, § 2 [eff Jan. 1, 1977]), they erred in granting the ex parte motions to dismiss on the grounds of “gross laches” or failure to prosecute. The procedural device of dismissing a petition for failure to prosecute is a legislative creation, not a part of a court’s inherent power (Cohn v Borchard Affiliations, 25 N.Y.2d 237, 248). Thus, the conceded failure of respondent or the court to afford petitioners adequate written notice constitutes a failure of a condition precedent to the dismissal (CPLR 3216 [b]). We note that although joinder of issue and the lapse of a year since joinder are also conditions precedent to dismissal, the expiration of the period

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in which respondent is deemed to have interposed by statute its automatic denial of the allegations of the petition (RPTL 712
[1]) suffices in these circumstances to fulfill the requirement that issue be joined.

Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK JR., and BELLACOSA concur; Judge ALEXANDER taking no part.

Order reversed, with costs, and motions to dismiss the proceedings denied in a memorandum.