                         State of New York
                  Supreme Court, Appellate Division
                     Third Judicial Department
Decided and Entered:   April 2, 2015                  519143/519144
                                                      519145/519146
                                                      519147/519148
________________________________

In the Matter of ROBERT B.
   KARL,
                    Respondent,
      v

SHARON L. MARTIN, as Assessor
   of the City of Troy, et al.,
                    Appellants.

(Proceeding No. 1.)
_______________________________

In the Matter of LEOPOLDO
   SARAZA et al.,
                    Respondents,
      v                                    MEMORANDUM AND ORDER

SHARON L. MARTIN, as Assessor
   of the City of Troy, et al.,
                    Appellants.

(Proceeding No. 2.)
_______________________________

In the Matter of MR. SUBB,
   INC.,
                    Respondent,
      v

SHARON L. MARTIN, as Assessor
   of the City of Troy, et al.,
                    Appellants.

(Proceeding No. 3.)
                              -2-   519143/519144
                                    519145/519146
                                    519147/519148

_______________________________

In the Matter of J. DELAINE
   JONES,
                    Respondent,
      v

SHARON L. MARTIN, as Assessor
   of the City of Troy, et al.,
                    Appellants.

(Proceeding No. 4.)
_______________________________

In the Matter of WISDOMWORKS LLC
   et al.,
                    Respondents,
      v

SHARON L. MARTIN, as Assessor
   of the City of Troy, et al.,
                    Appellants.

(Proceeding No. 5.)
_______________________________

In the Matter of JAN
   SIEMIGINOWSKI,
                    Respondent,
      v

SHARON L. MARTIN, as Assessor
   of the City of Troy, et al.,
                    Appellants.

(Proceeding No. 6.)
________________________________
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                                                  519145/519146
                                                  519147/519148

Calendar Date:   February 17, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                            __________


      Ian H. Silverman, Corporation Counsel, Troy (Daniel G.
Vincelette of counsel), for appellants.

      Dennin & Dennin, Lake Placid (Gregory M. Dennin of
counsel), for respondents.

                            __________


Egan Jr., J.

      Appeals from six orders of the Supreme Court (Ceresia, J.),
entered April 16, 2014 in Rensselaer County, which, among other
things, in proceedings pursuant to RPTL article 7, denied
respondents' motions to dismiss the petitions.

      Petitioners attempted to commence these six proceedings
pursuant to RPTL article 7 seeking, among other things, a
reduction in their respective tax assessments on parcels of land
located in the City of Troy, Rensselaer County. Although RPTL
708 (1) required personal service of the subject petitions,
petitioners served the respective notices of petitions and
petitions via certified mail. Respondents returned the petitions
– advising that they deemed such pleadings to be nullities – and
thereafter moved to dismiss the petitions pursuant to CPLR 3211
(a) (8) for lack of personal jurisdiction. Petitioners opposed
respondents' motions and cross-moved for extensions of time in
which to serve the underlying petitions. Supreme Court denied
respondents' motions, finding that the defective service could be
disregarded, and denied petitioners' cross motions as moot. This
appeal by respondents ensued.
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                                                 519145/519146
                                                 519147/519148

      Initially, petitioners' claim that respondents waived the
defect in service is belied by the record. Turning to the
merits, RPTL 708 (1) required petitioners to personally serve the
designated assessment officer, which they admittedly failed to
do, and – as this Court previously has observed – "the statute. .
. does not permit service by certified mail" (Matter of Wyeth
Ayerst Pharms., Inc. v Assessor of Town of Champlain, 24 AD3d
849, 850 [2005]). Further, the case law makes clear that "CPLR
2001 may be used to cure only a technical infirmity" (Ruffin v
Lion Corp., 15 NY3d 578, 582 [2010] [internal quotation marks and
citation omitted]), and the Court of Appeals has cautioned that
"simply mailing the [relevant pleadings] to [a] defendant . . .
would present more than a technical infirmity, even if [the]
defendant actually receives the [pleadings], inasmuch as
[mailing] in general introduce[s a] greater possibility of failed
delivery" (id. at 583). In this regard, we reject petitioners'
assertion that, because the relevant pleadings were served via
certified mail, as opposed to first class mail, the admitted
service defect may be said to fall within the realm of a
technical infirmity. Simply put, inasmuch as petitioners'
service was defective, Supreme Court should have granted
respondents' motions to dismiss the petitions. In light of this
conclusion, petitioners' cross motions are not moot, and we remit
these matters to Supreme Court in order to address such motions
on the merits.

     McCarthy, J.P., Devine and Clark, JJ., concur.
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                                                   519145/519146
                                                   519147/519148

      ORDERED that the orders are modified, on the law, without
costs, by reversing so much thereof as denied respondents'
motions; motions granted and matters remitted to the Supreme
Court for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
