Landmark Colony At Oyster Bay Homeowners Ass'n Inc v. Town Of Oyster Bay
| Decision Date | 29 September 2010 |
| Docket Number | INDEX NO.:22709/08,SEQ. No: 002,SEQ. No: 001 |
| Citation | 2010 NY Slip Op 32713 |
| Parties | LANDMARK COLONY AT OYSTER BAY HOMEOWNERS ASSOCIATION, INC., Plaintiff, v. TOWN OF OYSTER BAY, TOWN OF OYSTER BAY SOLID WASTE DISPOSAL DISTRICT, JOHN VENDITTO, as Supervisor of the Town of Oyster Bay, TOWN BOARD OF TOWN OF OYSTER BAY as Commissioners of the Town of Oyster Bay Garbage District, JAMES J. STEFANICH, Receiver of Taxes for TOWN OF OYSTER BAY, Defendants. |
| Court | New York Supreme Court |
The following papers have been read on this motion:
Notice of Motion, dated 7-31-09...1
Notice of Cross Motion, dated 8-25-09...2
Reply Affirmation, and in Opposition To Cross Motion, dated 8-3-10...3
Certified Copy of Minutes (ex. F to Reply, Separately bound)...4
Reply Affidavit in Support of Cross Motion, and In Opposition to Motion, dated 8-18-10...5
The motion by the plaintiff pursuant to CPLR 3212 for summary judgment declaring a certain waste disposal tax illegal as to it, and removing the plaintiff's property from the Town of Oyster Bay Solid Waste Disposal District ("Waste District"), is granted. The crossmotion by the defendants pursuant to CPLR 3212 for summary judgment dismissing the complaint is denied.
Initially, the Court notes that the three causes of action set forth in the amended complaint, in order, 1) complain of a failure to refund ad valorem Waste District taxes wrongly collected, 2) seek a declaration that the Waste District tax is illegal, and 3) assert that the plaintiff was excluded from the Town garbage district as a prerequisite for its existence, yet continues to pay taxes for the same. In the prayer for relief, however, "a" seeks a declaration that the tax is illegal and invalid, "b" calls for a refund, and "c" asks for a direction to the Town of Oyster Bay ("Town") that it remove plaintiff's property from the Waste District. It is clear that despite the reference to the first and third causes of action, the notice of motion is referring to the first and third prayers for relief, as they recite the request for the declaration that the tax is illegal, and that the unit owners be relieved of any future tax payment, which would require removal from the rolls of the Waste District. This sequence is confirmed by counsel's moving affirmation, at paragraph 3.
Pleadings are to be liberally construed absent prejudice to an opposing party (CPLR 3026), and because a rigid reading of the reference to "causes of action" in the notice of motion would cause the Court to address incorrectly the issues raised in plaintiff's motion, and defendants' response thereto, the Court will interpret such notice of motion as referring to the first and third prayers for relief.
The Court now turns to the merits of the present motion and cross motion. Plaintiff is a condominium complex within the Town. In 1980, the Town enacted Resolution 44-80, which had approved the site plan for the complex, but conditioned that approval on the following:
(13) That the collection and disposition for the property garbage, ashes, rubbish, debris, or other waste matter shall be the sole responsibility of the Unit owners without any obligation on the part of the Town of Oyster Bay, and said Town shall not be requested or petitioned to provide for any such collection or disposition.
Plaintiff's unit owners were taxed for garbage collection notwithstanding this provision, and the plaintiff sued to stop the practice. Ultimately, the plaintiff prevailed. The Appellate Division, Second Department affirmed the Supreme Court's determination that there was no basis for the imposition of garbage collection taxes, because the plaintiff is precluded by the Resolution set forth above from receiving such services. Landmark Colony at Oyster Bay Homeowners Assn., Inc. v Town of Oyster Bay, 145 AD2d 542 (2d Dept. 1988). The Court noted that the Town never offered to provide garbage collection to the plaintiff, and it found without merit the argument that the services had been refused in view of Resolution's bar to even requesting such services. It also found without merit the Town's contention that by consenting to the provision set forth above the condominium developer had agreed to the continued imposition of the tax, and to waive collection services.
In 1986, however, the Town adopted another Resolution, 123-1986, under which an order established defendant Waste District. In that order, the Town stated that "all of the property and property owners benefitted are included within the limits of the proposed solid waste disposal district." It is undisputed that the plaintiff lies within the geographical boundaries of the Waste District established under the Resolution and order, and that its unit owners have been assessed and have been paying the Waste District tax..
On this motion the plaintiff points to the Appellate Division decision as having res judicata and collateral estoppel effect on the current dispute, and that Town Law § 198(9)(b) permits taxation only of "users" of refuse and garbage collection services, and that plaintiff'sunit owners and not users.
The Court finds that the plaintiff has made out its prima facie case by way of the submission of Resolution 44-80, and the affidavit of Stanley Speigelman, president of the plaintiff's Homeowner's Association, who states that he has been a unit owner since 1996 and has paid a waste disposal tax. He also states that to his knowledge, the plaintiff does not use garbage collection or garbage disposal services, which are provided by a private company. Therefore, under Resolution 44-80, Town Law § 198(9)(b) and the Appellate Division holding in Landmark Colony at Oyster Bay Homeowners Assn., Inc. v Town of Oyster Bay, supra, the tax is invalid.
In response, the defendants argue that this tax is not for garbage collection, pointing to separate lines in tax bills for garbage collection and the Waste District tax. Rather, it is for other functions, such as remediation of landfills, collection and recycling of recyclable materials, disposition of hazardous waste, operation of a solid waste disposal complex, and composting of organic waste such as leaves and grass clippings. They contend that the Town Resolutions referred to above are no bar to imposition of the tax, because in Resolution 44-80 the word "disposition" is followed by the words "for the property", which means that even though there is no garbage collection there may still be garbage "disposition" by the Waste District (private carriers for the plaintiff, they note, "may" bring the garbage they collect to a District facility), and so the tax may be imposed. They further argue that this earlier Resolution does not dispose of the issues here, because the Waste District came into existence afterwards, and thus the drafters of Resolution 44-80 could not have anticipated the services to be provided by the Waste District when that Resolution was adopted.
The defendants' position is untenable. First, there is no proof that the plaintiff's unit owners are utilizing any of the "disposition" services by the Town. The affidavits by Eric Swenson, Superintendent of Environmental Control for the Town, and John Hommell, a recycling supervisor, describe what the Town does with solid waste and the services offered to its residents, but they do not claim that any of the plaintiff s unit owners, or private carriers hired by the plaintiff, actually use the Waste District's services. Rather, these affiants state that even if the residents of the condominium complex are not doing so, they can use these services if they choose, and they are benefitted in any event as members of the Town population. Defendants' key arguments are akin to the one made to and rejected by the Appellate Division regarding collection services.
The prior Appellate Division decision cannot be given res judicata or estoppel effect because the issue here is not identical; the tax is different, the 1986 Resolution and service upon which the tax is based is different, and the parties thus have not had a full and fair opportunity to litigate the issues raised in the amended complaint and answer. See, Beuchel v Bain, 97 NY2d 295, 303-304 (2001); Frankelv J.P. Morgan Chase & Co., 76AD3d 664 (2d Dept. 2010).
Nevertheless, the holding and commentary of the earlier case are clear guides. As was true in 1988 when the case was decided, there is no proof that Resolution 44-80 has been rescinded or modified, and it refers both to the collection and disposition of waste as services the plaintiff's residents cannot request. The language of the Resolution was the basis of the appellate court's rejection of the Town's argument that unit owners had refused services that had been offered.
Thus, the current claim that certain "disposition" services are available does nothing to alter the language of the Resolution barring a request for such services. Even accepting as true defendants' contention that condominium residents may, on their own initiative, avail themselves of certain services, such...
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