Cullen v. New York State Div. of Tax Appeals, 30 A.D.3d 850 (N.Y. App. Div. 2006). · Go Syfert
Search
Cullen v. New York State Div. of Tax Appeals, 30 A.D.3d 850 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
5 citation events (5 in the last 25 years) across 1 distinct court.
Strongest positive: Hudson River Valley, LLC v. Empire Zone Designation Board (nyappdiv, 2014-03-06)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) Hudson River Valley, LLC v. Empire Zone Designation Board
N.Y. App. Div. · 2014 · confidence medium
The narrow exceptions to the exhaustion rule (see Matter of Connerton v Ryan, 86 AD3d at 699 ; Matter of Cullen v New York State Div. of Tax Appeals, 30 AD3d 850, 851 [2006]) include, as relevant here, circumstances in which an administrative challenge would be futile or where the issue to be determined is purely a question of law (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d at 57 ; Matter of Cady v Clark, 176 AD2d 1055, 1056 [1991]).
discussed Cited as authority (rule) Hudson River Valley, LLC v. Empire Zone Designation Board
N.Y. App. Div. · 2014 · confidence medium
The narrow exceptions to the exhaustion rule (see Matter of Connerton v Ryan, 86 AD3d at 699 ; Matter of Cullen v New York State Div. of Tax Appeals, 30 AD3d 850, 851 [2006]) include, as relevant here, circumstances in which an administrative challenge would be futile or where the issue to be determined is purely a question of law (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d at 57 ; Matter of Cady v Clark, 176 AD2d 1055, 1056 [1991]).
cited Cited as authority (rule) Voelker v. State of New York Commissioner
N.Y. App. Div. · 2008 · confidence medium
Matter of Cullen v New York State Div. of Tax Appeals, 30 AD3d 850, 851 [2006]).
discussed Cited "see" Matter of Beckerman v. New York State Dept. of Taxation & Fin.
N.Y. App. Div. · 2024 · signal: accord · confidence high
To be sure, "[i]t is well settled that an administrative agency's determination must be challenged through every available administrative remedy before it can be challenged in the courts" ( Matter of Schenectady [*4]Nursing & Rehabilitation Ctr., LLC v Shah , 124 AD3d 1023 , 1024 [3d Dept 2015]; accord Matter of Shining Star Home Care, LLC v Zucker , 215 AD3d 1090 , 1091-1092 [3d Dept 2023]), and, in the context of the Tax Law, exhaustion generally requires a determination by the Tax Appeals Tribunal ( see Matter of Cullen v New York State Div. of Tax Appeals , 30 AD3d 850, 850-851 [3d Dept 20…
Retrieving the full opinion text from the archive…
In the Matter of Kenneth C. Cullen
v.
New York State Division of Tax Appeals
Appellate Division of the Supreme Court of the State of New York.
Jun 22, 2006.
30 A.D.3d 850
Lahtinen.
Cited by 5 opinions  |  Published
Lahtinen, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Tax Law § 2016) to review a determination of respondent Division of Tax Appeals which, inter alia, sustained an assessment of personal income tax imposed under Tax Law article 22.

Petitioner contends that respondent Department of Taxation and Finance sent notices of deficiency to him on March 6, 2003 at an address that the Department knew or should have known was outdated. The notices were returned as undeliverable and were remailed by the Department. On June 30, 2003, the Department mailed demands for payment to another address it had obtained for petitioner. Petitioner contacted the Department in December 2003 and, in February 2004, requested a conciliation conference. The request was dismissed as untimely in a conciliation order dated March 5, 2004, which also notified petitioner of his right to file a petition with respondent Division of Tax Appeals within 90 days.

Petitioner did not file a petition until July 2004, and it was dismissed by an Administrative Law Judge (hereinafter ALJ) because it had not been filed in a timely fashion. The ALJ noted that petitioner was not without recourse as he could pay the tax, apply for a refund and, if denied, proceed with a petition or conciliation conference. Petitioner requested an extension of time in which to appeal to the Tax Appeals Tribunal, but the request was not made until after the time to appeal had already expired. Petitioner then elected not to pursue the appeal to the Tax Appeals Tribunal, but instead commenced this proceeding.

A final determination by the Tax Appeals Tribunal is generally a prerequisite to judicial review and a failure to exhaust that administrative remedy will result in dismissal (see Matter [*851] of Between the Bread II v Urbach, 234 AD2d 724, 724 [1996]; Matter of De Milt v Tax Appeals Trib. of State of N.Y., 232 AD2d 824, 824 [1996], lv denied 89 NY2d 816 [1997]). Here, petitioner did not pursue an appeal to the Tax Appeals Tribunal. None of the narrow exceptions to the rule requiring the exhaustion of administrative remedies applies (see Matter of Between the Bread II v Urbach, supra at 724; Kallenberg Meat Prods. v O’Cleireacain, 209 AD2d 381, 382 [1994]; see generally Bankers Trust Corp. v New York City Dept. of Fin., 1 NY3d 315, 322-323 [2003]). Moreover, as noted by the ALJ and conceded by respondents in their brief, petitioner has an available alternative remedy in which to pursue his factual and legal issues.

Crew III, J.E, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the petition is dismissed, without costs.