Grossman v. Wagner
| Decision Date | 07 October 1959 |
| Citation | 192 N.Y.S.2d 557,20 Misc.2d 707 |
| Parties | Application of Solomon GROSSMAN and Alfio Campagna, Petitioners, to Review an Order pursuant to Article 78 of the Civil Practice Act v. Hon. Robert F. WAGNER as Mayor of the City of New York, Hon. Abe Stark, as President of the City Council of the City of New York, William E. Boyland, as President and Mark A. Bogart, Alexander G. Hesterberg, Samuel B. Goodman, Joseph F. Mafera, Nathan W. Math and Irving Rivkin, as the Tax Commission of the City of New York, for an Order compelling the Respondents to grant tax abatement and exemption as provided by Sec. J41-2.4 of the Administrative Code to Petitioner, Respondents. |
| Court | New York Supreme Court |
London & Sherman, New York City (Leon London, Isaac Sherman, New York City, of counsel), for petitioner.
Charles H. Tenney, Corp. Counsel, New York City (Morris Handel, Edith I. Spivack, New York City, of counsel), for respondents.
This is a proceeding, pursuant to Article 78 of the Civil Practice Act, (1) to set aside a determination of the Tax Commission of the City of New York which denied petitioners' application for tax exemption and tax abatement, pursuant to section J41-2.4 of the N.Y.C. Administrative Code, and (2) to direct respondents, the Mayor, the President of the City Council, and the members of the Tax Commission, to grant tax exemption and tax abatement to petitioners. Respondents, by cross motion, seek dismissal of the petition on the ground (1) that the exclusive remedy available to petitioners is that provided in section 290 et seq. of the Tax Law, sections 163-166 of the New York City Charter, and section 166-1.0 of the Administrative Code; (2) that the petition fails to state a good cause of action for the relief sought; and (3) that the decision of the Tax Commission is not a final order.
The petition alleges that petitioners are presently the owners of a Class A multiple dwelling in the Borough of Manhattan; that on July 12, 1956, section J41-2.4 of the Administrative Code was enacted into law pursuant to an enabling act of the state legislature (Tax Law, § 5-h); that at the time of said enactment, the building was not centrally heated and contained inadequate, obsolete sanitary facilities and fire and health hazards; that said section J41-2.4 provided that 'any increase in assessed valuation resulting from alterations and improvements to existing dwellings to eliminate presently existing unhealthy or dangerous conditions in any existing dwelling or to replace inadequate and obsolete sanitary facilities in any such dwelling, any of which present fire or health hazards, or to provide central or other appropriate and approved heating * * * shall be exempt from taxation for local purposes for a period of twelve years after the taxable status date immediately following the completion of the alterations and improvements, to the extent that such increase in assessed valuation result from the reasonable cost of such alteration and improvements, providing that construction is started after March first, nineteen hundred fifty-five and completed before December thirty-first, nineteen hundred fifty-nine'; that said section further provided that 'the taxes upon any such property, including the land, shall be abated and reduced by an amount equal to eight and one-third percentum of the reasonable cost of such alterations and improvements each year for a period of nine years commencing with the first tax bill for the first tax year in which the exemption herein provided is effective'; that, in reliance upon these statutory provisions, petitioners purchased the property and, pursuant to plans approved by the Department of Buildings, altered the building by removing the inadequate and obsolete sanitary facilities and replacing them with adequate plumbing, and by removing and correcting the fire and health hazards and installing central heating; and that petitioners obtained certificates, as required by the statute, from the City Planning Commission and the Department of Buildings, the latter certifying, among other things, the reasonable cost of the alterations and improvements. It is further alleged that petitioners thereafter, on March 10, 1959, filed an application with the Tax Commission for tax exemption and tax abatement, but that their application was denied on the ground that the building was not subject to the provisions of the Emergency Housing Rent Control Law and was therefore not entitled to tax exemption or tax abatement by reason of a 1959 amendment (Local Law 14 of 1959) of section J41-2.4 of the Administrative Code, which withdrew the benefits of that section from uncontrolled or decontrolled dwellings.
The petition goes on to allege that the 1959 amendment is void (1) because it was passed without compliance with section 37 of the New York City Charter, which provides that 'no local law shall be passed until it shall have been in its final form and upon the desks of the councilmen at least seven calendar days, exclusive of Sundays, prior to its final passage', and (2) because it is unconstitutional, in that it impairs the obligations of the 'contract' between petitioners and the city alleged to have arisen from petitioners' 'acceptance', by performing the alterations and improvements, of the 'offer' of tax exemption and tax abatement, embodied in section J41-2.4, supra, without any exclusion of uncontrolled or decontrolled dwellings.
Respondents' contention that petitioners may not review the determination of the Tax Commission by an Article 78 proceeding ignores or disregards the fact that there is no statutory provision affording petitioners any other remedy for a denial of tax abatement. Section 165 of the Charter provides for a final determination by the Tax Commission 'upon any application for the correction of an assessment', while section 166 distinguishes between a proceeding to review such a determination and one to review a final determination not involving the correctness of an assessment. The remedy provided for in section 290 et seq. of the Tax Law, sections 163 to 166 of the Charter, and section 166-1.0 of the Administrative Code, relates only to proceedings of the correctness of the assessed amount of the property. In People for tax abatement. The latter do not involve in the slightest the question of the correctness of the assessed amount of the property. In People ex rel. Ambroad Equities, Inc. v. Miller, 289 N.Y. 339, at page 342, 45 N.E.2d 902, at page 903, the court said: 'In certiorari proceedings only the question whether the tax assessment is valid can be litigated.' Since no other remedy is provided for reviewing a denial of an application for tax abatement, an Article 78 proceeding will lie (see Cooper Union for the Advancement of Science and Art v. City of New York, 272 App.Div. 438, 71 N.Y.S.2d 204). As the petitioners' proceeding is, therefore, properly brought insofar as it seeks tax abatement, it is unneceassary to determine whether the proceeding is also maintainable, concurrently with the remedy formerly denominated certiorari, in order to obtain tax exemption. Where the question to be decided is purely one of law (in this case, the validity of the 1959 amendment) and does not involve valuation of the real property, a factual question, it may well be, as petitioners contend, that Article 78, Civil Practice Act, affords a concurrent remedy. See Dun & Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, 731, permitting an action for a declaratory judgment as to the legality of a tax notwithstanding the existence of a different form of statutory review; see also State Insurance Fund v. Boyland, 282 App.Div. 516, 519-520, 125 N.Y.S.2d 169, 172-174, affirmed 309 N.Y. 1009, 133 N.E.2d 457. The remedy of certiorari is intended to be the exclusive remedy for situations involving a factual issue as to the correctness of the amount of the assessment, rather than for the determination of a pure question of law, free from any issues of fact.
We turn now to the claim of petitioners that the 1959 amendment is null and void for failure to comply with section 37 of the Charter. The petition here alleges (par. 16) that after the return of the bill, embodying the amendment in its final form, from the printer on December 17, 1958, 'it was for the first time placed upon the desks of the Councilmen' (italics supplied). This is an allegation of a factual nature and it must be deemed true for the purposes of the respondents' cross motion to dismiss the petition as insufficient. If December 17, 1958 was the first day the bill was placed on the desks of councilmen, it is clear that it was not on their desks 'at least seven calendar days, exclusive of Sundays, prior to its final passage', which occurred on December 23, 1959. This is so even if both December 17 and December 23 are included in the count, for that would amount to seven days, one of which was a Sunday and therefore to be excluded from the count. Respondents' brief implies that the bill, in unprinted form, was on the desks of the councilmen from December 16, the date of its introduction, but this is contrary to the allegation of the petition above referred to, which must be deemed true at this time. Respondents also urge that the official journal of the Council may not be impeached, but there is nothing before the court to establish that the journal entries show that the bill was on the desks of the councilment at least seven days, exclusive of Sundays, prior to its passage.
The present application is one of 27 of the same nature made by owners of various properties. Three of the other petitions also contain the allegation that December 17, 1958 was 'the first time' the bill for the proposed amendment was placed on the desks of the councilmen. The other 23 petitions allege that the bill was introduced on December 16; that it was sent...
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