Anderson v. State

Appellate Division of the Supreme Court of New York

Anderson v. State

173 A.D.2d 988, 569 N.Y.S.2d 500, 1991 N.Y. App. Div. LEXIS 7558

Appellate Division of the Supreme Court of the State of New York·Decided May 9, 1991·Published·Cited by 2 cases

Opinion

Appeal from an order of the Supreme Court (McDermott, J.), entered September 9, 1989 in Albany County, which, inter alia, granted defendants’ motion to dismiss the complaint as time barred.

In their complaint, plaintiffs allege that defendants’ seizure of cigarettes under the authority of Tax Law § 1846 was unconstitutional insofar as the cigarettes were Indian property and therefore protected from tax under US Constitution, article I, § 8. Such a challenge was not to the constitutionality of the statute itself but rather was "an attack on another kind of governmental act * * * mounted in constitutional terms” (SJI Realty Corp. v City of Poughkeepsie, 133 AD2d 682, 683; see, Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 458). As such, Supreme Court properly determined that the four-month Statute of Limitations applicable to CPLR article 78 proceedings governed the case (CPLR 217; see, Solnick v Whalen, 49 NY2d 224). Given that the seizure took place on February 25, 1988 and suit was not commenced until January 1989, the action was properly dismissed as time barred.

Order affirmed, without costs. Mahoney, P. J., Casey, Weiss, Yesawich, Jr. and Harvey, JJ., concur.

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Appeal from an order of the Supreme Court (McDermott, J.), entered September 9, 1989 in Albany County, which, inter alia, granted defendants’ motion to dismiss the complaint as time barred.

In their complaint, plaintiffs allege that defendants’ seizure of cigarettes under the authority of Tax Law § 1846 was unconstitutional insofar as the cigarettes were Indian property and therefore protected from tax under US Constitution, article I, § 8. Such a challenge was not to the constitutionality of the statute itself but rather was "an attack on another kind of governmental act * * * mounted in constitutional terms” (SJI Realty Corp. v City of Poughkeepsie, 133 AD2d 682, 683; see, Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 458). As such, Supreme Court properly determined that the four-month Statute of Limitations applicable to CPLR article 78 proceedings governed the case (CPLR 217; see, Solnick v Whalen, 49 NY2d 224). Given that the seizure took place on February 25, 1988 and suit was not commenced until January 1989, the action was properly dismissed as time barred.

Order affirmed, without costs. Mahoney, P. J., Casey, Weiss, Yesawich, Jr. and Harvey, JJ., concur.

Anderson v. State, 173 A.D.2d 988, 569 N.Y.S.2d 500, 1991 N.Y. App. Div. LEXIS 7558 (N.Y. Ct. App. 1991).

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173 A.D.2d 988 (Anderson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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