Raffone v. Town of Islip

• Decision Date: 07 December 1981
• Parties: Louis RAFFONE, Appellant, v. TOWN OF ISLIP et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 700

444 N.Y.S.2d 700

85 A.D.2d 597

Louis RAFFONE, Appellant, v. TOWN OF ISLIP et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Dec. 7, 1981.

Siben & Siben, Bay Shore (Robert J. Mirel, Bay Shore, of counsel), for appellant.

William R. Bennett, Islip (Edward S. Raskin, Islip, of counsel), for respondents.

Before MANGANO, J. P., and WEINSTEIN, THOMPSON and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In an action to declare a certain resolution of the defendant Town of Islip to be unconstitutional and void and to enjoin defendants from imposing any tax or levy against the taxpayers of the Town of Islip because of it, plaintiff appeals from an order of the Supreme Court, Suffolk County (ASPLAND, J.), dated October 16, 1980, granting defendants' motion for summary judgment dismissing the complaint.

Order modified, on the law, by deleting the provision dismissing the complaint in its entirety and substituting therefor a provision declaring that the resolution does not constitute a double taxation and otherwise dismissing the complaint. As so modified, order affirmed, with $50 costs and disbursements to defendants.

On April 17, 1979, the defendant Town Board of the Town of Islip adopted a resolution pursuant to subdivision 3 of section 209-e of the Town Law. This resolution approved the establishment of an ambulance district, subject to a permissive referendum. In May, 1979 plaintiff commenced the instant action to declare this resolution unconstitutional and void, and to enjoin defendants from enforcing it or imposing any tax levy against the taxpayers of the Town of Islip resulting therefrom.

The complaint alleged that the resolution necessarily includes the imposition of an additional tax or levy upon plaintiff in addition to other taxes previously imposed, and that the application of the resolution results in double taxation. Plaintiff alleges that if indeed any need exists for additional ambulance service, this need could be satisfied by increasing the funds to the fire departments, which already provide an ambulance service on a volunteer basis.

Defendants moved for summary judgment on various grounds, only one of which was ruled upon at Special Term. That court dismissed the complaint upon a finding that no duplicative taxation is present. We agree with the finding, for the reasons indicated herein.

The town argues that there can be no double taxation because ambulance districts as well as fire districts are municipal entities apart from the town. This characterization of the status of the districts is not technically correct. A fire district is a "district corporation" (Town Law, § 174, subd. 6), "which possesses the power to contract indebtedness and levy taxes or benefit assessments upon real estate or to require the levy of such taxes or assessments" (General Construction Law, § 66, subd. 3; see, also, N.Y.Const., art. VIII, § 3; Town Law, § 181). An ambulance district, in contrast, is an improvement district (see Town Law, § 209-a, as supplemented, e. g., by L.1978, ch. 696, § 1), which is only a "special administrative area" and not a municipal corporation (Tom Sawyer Motor Inns v. Chemung County Sewer Dist. No. 1, 33 A.D.2d 720, 721, 305 N.Y.S.2d 408, affd. 32 N.Y.2d 775, 344 N.Y.S.2d 958, 298 N.E.2d 120; Belinson v. Sewer Dist. No. 16 of Town of Amherst, 65 A.D.2d 912, 410 N.Y.S.2d 469; General Construction Law, § 66, subd. 2). Nor is an improvement district a district corporation, for the former is constitutionally without power to levy taxes or assessments or to require the levy of taxes or assessments (N.Y.Const., art. VIII, § 3; General Construction Law, § 66, subd. 3). Thus, the ambulance district is...