Current through Register Vol. 46, No. 12, March 20, 2024
(a) Motion to dismiss.
(1) Grounds. A party may move to dismiss a
petition on the grounds that:
(i) a defense
is founded on documentary evidence;
(ii) the division of tax appeals lacks
jurisdiction of the subject matter of the petition;
(iii) the petitioner lacks legal capacity to
petition;
(iv) there is an action
pending between the same parties on the same controversy in a court of any
state or the United States; the administrative law judge need not dismiss on
this ground but may make such order as justice requires;
(v) the petition may not be maintained
because of discharge in bankruptcy, infancy or other disability of the moving
party, payment, release, or statute of limitations;
(vi) the pleading fails to state a cause for
relief;
(vii) the division of tax
appeals lacks jurisdiction over the taxpayer; or
(viii) the division of tax appeals should not
proceed in the absence of a person who should be a party.
Only one such motion shall be made.
(2) Procedure.
(i) Either party may submit any evidence that
could properly be considered on a motion for summary determination. Whether or
not issue has been joined, the administrative law judge, after adequate notice
to the parties, may treat the motion as a motion for summary determination. The
administrative law judge may order immediate hearing of the issues raised on
the motion.
(ii) Should it appear
from affidavits submitted in opposition to a motion, that facts essential to
justify opposition may exist but cannot then be stated, the administrative law
judge may deny the motion, allowing the moving party to assert the objection in
his or her responsive pleading, if any, or may order a continuance to permit
further affidavits to be obtained, or may make such other order as may be
just.
(3) Review. A
determination of an administrative law judge denying the motion to dismiss is
not subject to review by the tribunal.
(4) Notice of intent to dismiss petition. The
supervising administrative law judge on his or her own motion may, upon notice
to the parties, issue a determination dismissing the petition on the ground
that:
(i) the division of tax appeals lacks
jurisdiction of the subject matter of the petition; or
(ii) the division of tax appeals lacks
jurisdiction over the taxpayer.
The notice of intent to dismiss shall inform the parties of
the facts and the reasons providing the basis for the intended dismissal. The
notice of intent to dismiss shall also provide the parties with 30 days to
submit written comments on the proposed dismissal.
(5) Motion to dismiss exception. Any party
may move to dismiss an exception on the ground that the exception was not filed
within 30 days of the issuance of the administrative law judge determination as
provided for in Tax Law, section
2006(7).
(6) Notice of intent to dismiss exception.
The tribunal on its own motion may, upon notice to the parties, issue a
decision dismissing the exception on the ground that the tribunal lacks
jurisdiction over the subject matter of the exception. The notice of intent to
dismiss shall be issued in the same manner as that set forth in paragraph (4)
of this subdivision.
(b)
Motion for summary determination.
(1) General.
After issue has been joined (see section
3000.4[c]
of this Part), any party may move for summary determination. Such motion shall
be supported by an affidavit, by a copy of the pleadings and by other available
proof. The affidavit, made by a person having knowledge of the facts, shall
recite all the material facts and show that there is no material issue of fact,
and that the facts mandate a determination in the moving party's favor. The
motion shall be granted if, upon all the papers and proof submitted, the
administrative law judge finds that it has been established sufficiently that
no material and triable issue of fact is presented and that the administrative
law judge can, therefore, as a matter of law, issue a determination in favor of
any party. The motion shall be denied if any party shows facts sufficient to
require a hearing of any material and triable issue of fact. Where it appears
that a party, other than the moving party, is entitled to a summary
determination, the administrative law judge may grant such determination
without the necessity of a cross-motion. Should it appear from affidavits
submitted in opposition to the motion that facts essential to justify
opposition may exist but cannot be stated, the administrative law judge may
deny the motion or may order a continuance to permit affidavits or admissions
to be obtained and may make such other order as may be just.
(2) Review. A determination of an
administrative law judge denying the motion for summary determination is not
subject to review by the tribunal (see section
3000.5[f]
of this Part).
(c)
Application of CPLR. Where not otherwise in conflict with this Part, a motion
to dismiss filed pursuant to this section shall be subject to the same
provisions as motions filed pursuant to section 3211 of the CPLR and a motion
for summary determination filed pursuant to this section shall be subject to
the same provisions as motions filed pursuant to section 3212 of the
CPLR.