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County Could Seek Judicial Intervention Re: the Collection of a County Hotel Tax Without Exhausting Administrative Remedies—Constitutional Underpinning of Local Tax Laws Explained

The Second Department, in determining the plaintiff county was not required to exhaust its administrative remedies (and then commence an Article 78 proceeding) in order to seek judicial review of whether the defendant has been paying the correct amount of a county hotel and motel accommodation tax, explained the underpinning of local tax law in New York:

The appellants contend that the branch of their motion which was pursuant to CPLR 3211(a)(2) to dismiss the first cause of action seeking enforcement of the Hotel Tax against them for lack of subject matter jurisdiction should have been granted because, inter alia, the Enabling Act required the plaintiff to exhaust certain administrative remedies before judicial intervention could be obtained, and that the plaintiff failed to do so.

In New York, local governments do not have an independent power to tax. The New York Constitution vests the taxing power in the State Legislature and authorizes the Legislature to delegate that power to local governments (see NY Const, art. XVI, § 1…). The New York Constitution places fundamental limitations on such delegations. The Legislature must describe with specificity the taxes authorized by any enabling statute (see NY Const, art XVI, § 1…). In turn, local governments can only levy and collect taxes within the expressed limitations of specific enabling legislation (see NY Const, art IX, § 2[c][8]…).

As a general rule, tax statutes should be strictly construed and limited to their terms, which should not be extended by implication … . Any ambiguity in a tax law should be resolved in favor of the taxpayer and against the taxing authority … .

Applying these principles here, contrary to the appellants’ contention, the plaintiff was not required to exhaust administrative remedies before commencing this action, and judicial review is not limited to a proceeding pursuant to CPLR article 78 … . County of Nassau v Expedia Inc, 2014 NY Slip Op 06049, 2nd Dept 9-1014

 

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THE FLOOR IN THE BATHROOM WHERE PLAINTIFF SLIPPED AND FELL HAD RECENTLY BEEN MOPPED; THE DEFENDANT GROCERY STORE DID NOT PROVE THERE WAS AN ADEQUATE WARNING; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained—Criteria for Motion to Dismiss Based on Documentary Evidence Explained—Pleading Requirements for Legal Malpractice Explained
PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).
HEIGHT DIFFERENTIAL WAS NOT A DANGEROUS CONDITION AND WAS READILY OBSERVABLE, SLIP AND FALL ACTION PROPERLY DISMISSED (SECOND DEPT).
THE ROBBERY COULD NOT BE COMMITTED WITHOUT COMMITTING THE ASSAULT; ASSAULT COUNT DISMISSED AS MULTIPLICITOUS; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).
REPORTS BY THE DISTRICT ATTORNEY’S CONVICTION REVIEW UNIT (CRU) EXONERATING CONVICTED PERSONS ARE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION LAW (FOIL); AN EXONERATED PERSON MAY WAIVE THE SEALING REQUIREMENT (CPL 160.50) AND CONSENT TO DISCLOSURE OF A REPORT; THE RELEASED REPORT HERE IS SUBJECT TO REDACTION DETERMINED IN AN IN CAMERA REVIEW BY A JUDGE (SECOND DEPT).
THE CONDITIONAL ORDER OF DISMISSAL OF THIS FORECLOSURE ACTION DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT). ​

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