Capelle v. Makowski
| Decision Date | 04 April 1977 |
| Citation | 93 Misc.2d 436,402 N.Y.S.2d 904 |
| Parties | Helen CAPELLE, John Scott, Jr., Margaret Galla, Mildred Dillon, Rose Ella Brown, Mary Ann Purpera, Edward Rassell, Ethel Mae Hill, Genell Wood, Bertha McGriff, Rufus Garrett, Benedicto Cordero, Willie Mae Staley, John Doe and Jane Doe, Plaintiffs, v. Stanley MAKOWSKI, as Mayor of the City of Buffalo, Defendant. |
| Court | New York Supreme Court |
Plaintiffs seeks a judgment declaring the Excise Tax on Occupancy, Local Law No. 5 (1976) of the City of Buffalo, unconstitutional and enjoining the City from collecting said tax or imposing penalties for nonpayment thereof. The present action was commenced by service of an order to show cause, together with a summons and complaint, on or about the 21st day of January, 1977. Upon the return of the show cause order, Justice Cook of this Court denied plaintiffs' request for a preliminary injunction. Issue has not yet been joined and the matter comes before us upon the defendant's motion for dismissal pursuant to Civil Practice Law and Rules 3211.
The nature of the lawsuit and the pleadings presented to the Court indicated that the motion should be treated as one for summary judgment. Plaza Mgt. Co. v. City Rental Agency, 31 A.D.2d 347, 298 N.Y.S.2d 162. We gave notice of our intention, pursuant to CPLR 3211(c), to each party with leave to submit whatever material they deemed relevant.
Plaintiffs allege eleven causes of action. The gravamen of these is that the Occupancy Tax, as it has come to be known, is violative of the Constitution of New York and the United States and the enactments of the New York Legislature. The plaintiffs allege to be residents or property owners of the City of Buffalo subject to the provisions of the tax. The defendant is the chief executive officer of the municipal corporation and this action is brought against him in that capacity.
It is true that the allegations of residency are not in strict compliance with the requirements of CPLR 3013. The defect is not in and of itself fatal, however. The liberal interpretation which we are required to apply to pleadings requires that the defect be overlooked, at least at this juncture of the lawsuit, CPLR 3026.
We will assume for the purposes of this motion, that all factual allegations are true, Laura Distributing Corp. v. Koch, 35 A.D.2d 731, 315 N.Y.S.2d 978 (2nd Dept. 1970).
Plaintiffs' initial allegation relates to what they perceive as a prohibition against imposition of an Occupancy Tax by cities having a population of less than one million persons. This cause of action is based upon Section 1201 of the Tax Law which provides:
Section 1203 of the same chapter, entitled Taxes Administered by cities under one million, provides:
It is evident that the power to impose an occupancy tax has not been specifically enumerated as one of those available to cities of one million or more which has been given under this chapter to cities of under one million. Plaintiffs urge that since such power is not enumerated, it is forbidden. They base this conclusion on the introductory phrase of both sections "Notwithstanding any other provision of law to the contrary . . . ", Tax Law §§ 1201, 1203. The reasoning is that this phrase is restrictive; that it allows only certain actions, as set forth.
The meaning of the phrase is permissive, however, in that it allows actions otherwise prohibited.
Plaintiffs' argument is negated further by the fact that following the introductory phrase as quoted, each section goes on to say " . . . but subject to the applicable limitations and exemptions in part II of this article." Tax Law §§ 1201, 1203. Part II includes the following language:
The section speaks for itself.
The defendant, through the municipal legislative body, enacted the Occupancy Tax pursuant to the authority of § 110 of the Public Housing Law. That section provides in relevant part that " . . . a city . . . shall levy one or more of the following taxes: . . . (c) an excise tax on occupancy . . . ", Public Housing Law § 110. Plaintiffs have not questioned the legality or constitutionality of that Law. They contend that this section has been superseded by Article 29 of the Tax Law, however, and that the authority granted therein is limited to cities of one million or more. There is no authority for such contention. Article 29 of the Tax Law permits cities to impose certain taxes. It provides that certain taxes may be imposed by certain sized cities and others by smaller cities. It is not intended, as we construe it, to be all inclusive with regard to the taxing power of cities. Section 1222 is an indication that such a conclusion is correct. Section 110 of the Public Housing Law is not limited to cities with a population of over one million persons. To read such a restriction into the statute would be contrary to Section 220 of the same chapter, which requires a liberal construction to effectuate the purposes thereof. The authors of Section 220 may have anticipated plaintiffs' argument for they provide: " . . . the enumeration of specific powers in this chapter shall not operate to restrict the meaning of any general grant of power contained in this chapter . . . ", Public Housing Law § 220. Section 110 is a general grant of power to "cities" subject only to the limitation of Section 94 of that chapter. It has not been argued that the tax enacted is without the strictures of Section 94. Since there is no differentiation as to size, we may presume that it is applicable to all cities.
The plaintiffs' first cause of action, relying for success on a misinterpretation of the basic concepts of legal logic, is therefore without basis.
Plaintiffs' second cause of action alleges that they are unable to determine their liabilities under the ordinance for various reasons, principally asserting vagueness as to definitions, duties and penalties. The conclusion of plaintiffs is that the ordinance is therefore unconstitutional.
In construing an ordinance, the Court must take the words employed in their ordinary meaning unless it is plainly necessary to enlarge or modify that meaning in order to effectuate the legislative intent, Fifth Ave. Coach Co. v. City of New York, 194 N.Y. 19, 86 N.E. 824, affd. 221 U.S. 467, 31 S.Ct. 709, 55 L.Ed. 815. Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited. They must afford some comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements, People v. Grogan, 260 N.Y. 138, 145, 183 N.E. 273, 275. This basic tenet was quoted with approval by the courts in invalidating an ordinance requiring "customary street attire", People v. O'Gorman, 274 N.Y. 284, 8 N.E.2d 862, in upholding part of the Election Law, People v. Lang, 36 N.Y.2d 366, 368 N.Y.S.2d 492, 329 N.E.2d 176; and very recently in upholding a section of the Penal Law, People v. Esteves, 85 Misc.2d 217, 378 N.Y.S.2d 920.
The test is whether the terms of a statute are " . . . so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . ", Trio Distributors Corp. v. Albany, 2 N.Y.2d 690, 163 N.Y.S.2d 585, 143 N.E.2d 329. If so, then the statute is violative of due process.
The Occupancy Tax defines those who are to be taxed, when they are to be taxed, how the tax is to be collected, and the penalties to be imposed for nonpayment. The language in our opinion is certainly more definite than that struck down in People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949, 146 N.E.2d 682; or People v. Berck, 32 N.Y.2d 567, 347 N.Y.S.2d 33, 300 N.E.2d 411, cert. den. 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550, where the court found it necessary to go beyond the face of the statute to determine the prohibited activity.
Application of this test to the ordinance in question leads...
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