Prodell v. State

• Decision Date: 19 January 1995
• Citation: 211 A.D.2d 966,621 N.Y.S.2d 712
• Parties: , 97 Ed. Law Rep. 459 Albert G. PRODELL et al., Appellants, v. STATE of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 712

621 N.Y.S.2d 712

211 A.D.2d 966, 97 Ed. Law Rep. 459

Albert G. PRODELL et al., Appellants, v. STATE of New York et al., Respondents.

Supreme Court, Appellate Division Third Department.

Jan. 19, 1995.

Lewis & Greer, P.C. (J. Scott Greer, of counsel), Poughkeepsie, for appellants.

Dennis C. Vacco, Atty. Gen. (Frank K. Walsh, of counsel), Albany, for State of New York, respondent.

Murphy, Bartol & O'Brien, Town Atty. (Kathleen G. Oldak, of counsel), Mineola, for Town of Brookhaven, respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and PETERS, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Kahn, J.), entered February 4, 1994 in Albany County, which, inter alia, granted defendants' cross motions for summary judgment dismissing the amended complaint.

In 1980, the State Legislature amended the Suffolk County Tax Act (hereinafter SCTA) to require the towns in Suffolk County to pay for school tax refunds based upon court-ordered assessment reductions (L.1980, ch. 837). The Legislature again amended SCTA in 1983 to provide that, if the assessment of a nuclear power electrical generating facility was reduced, the school district in which the facility was located would be required to pay the school tax refund (L.1983, ch. 1018). The reach of this amendment (hereinafter Chapter 1018) is limited to plaintiff Shoreham-Wading River Central School District since that is where Suffolk County's only nuclear facility, the ill-fated Shoreham Nuclear Plant (hereinafter Shoreham), is located.

Plaintiffs mounted a constitutional challenge to Chapter 1018 in May 1984. We dismissed that action, finding it premature in the absence of a court-ordered reduction in Shoreham's assessment (see, Board of Educ., Shoreham-Wading Cent. School Dist. v. State of New York, 111 A.D.2d 505, 488 N.Y.S.2d 887, lv. dismissed 66 N.Y.2d 854, 498 N.Y.S.2d 366, 489 N.E.2d 253). Thereafter, in June 1993, a judgment was entered reducing Shoreham's assessment and directing that a refund of $38,145,885 plus interest be paid to Long Island Lighting Company (hereinafter LILCO), Shoreham's former owner.

That prompted plaintiffs to seek summary judgment in this declaratory judgment action that they commenced in 1986, in which they again challenge the constitutionality of Chapter 1018. Defendants cross-moved for the same relief. Defendant Town of Brookhaven (hereinafter the Town) also sought a change of venue to Suffolk County. Supreme Court granted the cross motions as it found that plaintiffs' action was still premature since an appeal from the judgment LILCO obtained was pending before the Second Department. Plaintiffs appeal.

Because the courts of New York do not render advisory opinions, it is axiomatic that an action " 'may not be maintained if the issue presented for adjudication involves a future event beyond [the] control of the parties which may never occur' " (Cuomo v. Long Island Light. Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546, quoting American Ins. Assn. v. Chu, 64 N.Y.2d 379, 385, 487 N.Y.S.2d 311, 476 N.E.2d 637, appeal dismissed, cert. denied 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29). However, where the practical likelihood is that the future contingency will occur, the action may proceed (see, Associated Indem. Corp. v. Fairchild Indus., 961 F.2d 32, 35;...