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Grant of Writ of Prohibition Reversed—Criteria for Writ Explained

Supreme Court granted a writ of prohibition finding the state police did not have the legal authority to seize cigarettes purchased by a Nebraska Indian tribe from a manufacturer located on the St. Regis Mohawk Indian Reservation in St. Lawrence County.  The cigarettes did not have state tax stamps.  The Third Department reversed describing the relevant analysis as follows:

Pursuant to well-established law, a CPLR article 78 proceeding for a writ of prohibition is an extraordinary remedy … that “lies only where there is a clear legal right to such relief, and only when [the body or officer involved] acts or threatens to act without jurisdiction in a matter . . . over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (…see also CPLR 7803 [2]).  Even where such a proceeding is permissible, the court has the discretion to deny the issuance of a writ of prohibition after considering such factors as “‘the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'”… .

…[P]etitioner failed to prove the absence of other avenues of relief that would adequately address the challenged seizure of the cigarettes… . * * *

…[P]etitioner failed to establish a clear entitlement to a writ of prohibition.  As relevant here, Tax Law § 471 (1) imposes “a tax on all cigarettes possessed in the state by any person for sale,” except under circumstances where “this state is without power to impose such tax” (Tax Law § 471 [1]; see 20 NYCRR 74.1 [a] [1]).4  All cigarettes within the state are presumed to be subject to tax unless “the contrary is established,” with the burden of proof of nontaxibility falling upon the person in possession of the cigarettes (Tax Law § 471 [1]).  In claiming that the sale here was not a taxable event, petitioner relies upon regulations which provide that no tax may be imposed on cigarettes sold to an out-of-state purchaser (see 20 NYCRR 74.1 [c] [4]; 76.1 [a] [1]). However, the same regulations that establish such exemption also require that all out-of-state sales be made by a duly licensed cigarette agent and that a certificate be obtained from the out-of-state purchaser showing that the cigarettes “will be immediately removed from the State to an identified location for such purposes and that such cigarettes shall not be returned to the State for sale or use herein” (20 NYCRR 76.3 [b] [emphasis added]).

…[P]etitioner has produced no evidence that the cigarettes would not be reintroduced into the state.   In fact, respondents submitted evidence in the form of, among other things, petitioner’s corporate shipment records and a statement by the driver of the truck, which suggest that petitioner regularly transports back into the state cigarettes purchased from the same manufacturer involved here.  HCI Distribution, Inc v NYS Police…, 516040, 3rd Dept 10-24-13

 

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