Brighton Beach Baths, Inc. v. Department of Taxation & Finance

87 A.D.2d 572, 447 N.Y.S.2d 743, 1982 N.Y. App. Div. LEXIS 15825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1982
• Status: Published

Opinion

In an action, inter alia, to declare that certain provisions of the Tax Law are not applicable to plaintiff Brighton Beach Baths, Inc., defendant appeals from an order of the Supreme Court, Kings County (Monteleone, J.), dated March 6, 1981, that denied its motion'to dismiss the complaint. Order reversed, on the law, with $50 costs and disbursements, and motion to dismiss granted. It is well settled that “[a]n action for a declaratory judgment may be maintained, despite the provisions of a taxing statute which provides that the method of judicial review prescribed therein shall be exclusive, where the jurisdiction of the taxing authorities is challenged on the ground that the statute is unconstitutional or that the statute by its own terms does not apply in a given case” (Richfield Oil Corp. v City of Syracuse, 287 NY 234, 239). In the present case, however, plaintiffs’ claim of inapplicability is really an assertion of “invalidity or unreasonableness” and, as such, “must be raised first by administrative review” (see Lyons & Co. v Corsi, 3 NY2d 60, 67; cf. Slater v Gallman, 38 NY2d 1). As to the challenge on the grounds of “vagueness”, that, too, is reviewable following an administrative proceeding and appears to "be nothing more than an attempt to avoid following through on the administrativé review plaintiffs have properly begun. Mollen, P. J., Titone, O’Connor and Thompson, JJ., concur.