                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     519801
________________________________

In the Matter of LEVEL 3
   COMMUNICATIONS, LLC,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ESSEX COUNTY,
                    Respondent,
                    et al.,
                    Respondents.
________________________________


Calendar Date:   April 20, 2015

Before:   Lahtinen, J.P., Rose, Devine and Clark, JJ.

                             __________


      Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York
City (John G. Nicolich of counsel), for appellant.

      Daniel T. Manning, County Attorney, Elizabethtown, for
Essex County, respondent.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Buchanan, J.),
entered June 23, 2014 in Essex County, which, among other things,
partially dismissed petitioner's application, in a combined
proceeding pursuant to CPLR article 78 and action for declaratory
judgment, to, among other things, compel a refund of certain real
property taxes paid by petitioner.

      In June 2013, petitioner, a telecommunications company that
owns fiber optic cable installations located within the
jurisdiction of Essex County, filed applications pursuant to RPTL
556-b seeking, among other things, refunds of real property taxes
                              -2-                519801

paid on said installations located upon private rights-of-way for
the years 2010, 2011 and 2012. Petitioner claimed that the taxes
were wrongfully assessed because the installations are not
taxable as real property (see Matter of RCN N.Y. Communications,
LLC v Tax Commn. of the City of N.Y., 95 AD3d 456, 457 [2012], lv
denied 20 NY3d 855 [2012]). After petitioner's applications were
not granted, it commenced this combined CPLR article 78
proceeding and action for declaratory judgment seeking, among
other things, refunds of real property taxes. As relevant to
this appeal, Supreme Court held that petitioner was precluded
from recovering the refunds that it sought on the grounds that
recovery was time-barred and petitioner had paid the taxes
voluntarily. Petitioner appeals, and we affirm.

      Initially, we note that, unless subject matter jurisdiction
is implicated, a court should not raise an issue sua sponte when
a party is prejudiced by its inability to respond (see Matter of
Dental Socy. of State of N.Y. v Carey, 92 AD2d 263, 264 [1983],
affd 61 NY2d 330 [1984]). Here, because respondent Essex County
failed to raise the statute of limitations as an affirmative
defense in a pre-answer motion to dismiss or in its answer
(see CPLR 3211 [a] [5]; [e]; 7804 [f]), it was improper for
Supreme Court to raise it sua sponte (see CPLR 3018 [b];
Progressive Northeastern Ins. Co. v North State Autobahn, Inc.,
71 AD3d 657, 658 [2010]). Inasmuch as petitioner was prejudiced
by its inability to respond, we cannot sustain Supreme Court's
partial denial of the petition on such ground (see Town of Delhi
v Telian, 119 AD3d 1049, 1050 [2014]; Matter of Isabella v
Hotaling, 207 AD2d 648, 649 [1994], lv denied 84 NY2d 801
[1994]).

      Nevertheless, we find no reason to disturb Supreme Court's
partial denial of the petition on the ground that petitioner
failed to demonstrate that it paid the taxes involuntarily. To
recover payments made under a mistake of law, as in the present
case (see Matter of RCN N.Y. Communications, LLC v Tax Commn. of
the City of N.Y., 95 AD3d at 457), a taxpayer is required to show
that the payments were made involuntarily (see City of Rochester
v Chiarella, 58 NY2d 316, 323 [1983], cert denied sub nom.
Quality Packaging Supply Corp. v City of Rochester, 464 US 828
[1983]; Community Health Plan v Burckard, 3 AD3d 724, 725 [2004];
                                -3-                519801

Bias Limud Torah v County of Sullivan, 290 AD2d 856, 857-858
[2002], lv denied 98 NY2d 610 [2002], amended 305 AD2d 972
[2003]).1 This requirement ensures that governmental entities
have notice that they may need to provide for tax refunds (see
Video Aid Corp. v Town of Wallkill, 85 NY2d 663, 667 [1995];
Matter of Tennessee Gas Pipeline Co. v Town of Chatham Bd. of
Assessors, 239 AD2d 831, 833 [1997]). Here, petitioner fully
paid all of the relevant taxes and offered no proof that it did
so under protest or that such payments were otherwise involuntary
(see Matter of Walton v New York State Dept. of Correctional
Servs., 57 AD3d 1180, 1183-1184 [2008], affd 13 NY3d 475 [2009];
compare Bias Limud Torah v County of Sullivan, 290 AD2d at 858).
Indeed, petitioner did nothing to indicate that its payments were
involuntary until nearly 18 months after the final contested tax
bill was paid, when petitioner submitted its RPTL 556-b
correction applications.2 Accordingly, Supreme Court's partial
denial of the petition is affirmed.

      Petitioner's remaining arguments have been considered and
we find them unavailing.

        Lahtinen, J.P., Rose and Devine, JJ., concur.



    1
        We note that petitioner's argument that RPTL 556 is a
"statutory procedure authorizing recovery" to which the voluntary
payment doctrine does not apply is unavailing insofar as RPTL 556
does not provide an affirmative right to recover taxes without
protest (Mercury Mach. Importing Corp. v City of New York, 3 NY2d
418, 430 [1957]; see e.g. City of Rochester v Chiarella, 65 NY2d
92, 98 [1985]; City of Rochester v Chiarella, 98 AD2d 8, 9, 12
[1983], affd 63 NY2d 857 [1984]).
    2
        It should be noted that petitioner incorrectly used RPTL
556-b to apply for the relief that it seeks. Specifically,
petitioner alleges an unlawful entry as defined by RPTL 550 (7)
(c), which is not a type of unlawful entry that can be redressed
by an RPTL 556-b application (see RPTL 550 [7]; 556-b [1]). The
Court, nonetheless, would come to the same conclusion even if
petitioner had filed the proper form.
                        -4-                  519801

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
