Schwarz v. New York State Department of Transportation

Appellate Division of the Supreme Court of New York

Schwarz v. New York State Department of Transportation

158 A.D.2d 967, 552 N.Y.S.2d 190, 1990 N.Y. App. Div. LEXIS 1499

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 1990

DocketAppeal No. 2

StatusPublished

This text of 158 A.D.2d 967 (Schwarz v. New York State Department of Transportation) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Schwarz v. New York State Department of Transportation, 158 A.D.2d 967, 552 N.Y.S.2d 190, 1990 N.Y. App. Div. LEXIS 1499 (N.Y. Ct. App. 1990).

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Opinion

Although State Finance Law § 123-c (4) provides that citizen-taxpayer actions "shall be promptly determined”, the record reveals that the court, without a trial, resolved disputed factual issues relating to the level of noise and the properties affected in plaintiffs’ favor "on the papers alone”, and entered final judgment on the merits. That was error (see, Matter of New York State Assn. of Plumbing-Heating-Cooling Contrs. v Egan, 65 NY2d 793).

Since neither party sought an accelerated judgment as a matter of law, we do not reach the issue whether the "facts” found by Special Term would constitute a violation of State Finance Law article 7-A. We note, however, that a citizen-taxpayer action lies " 'only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes’ ” (Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016; Kaskel v Impellitteri, 306 NY 73, 79; Fisher v Biderman, 141 Misc 2d 804, 809).

All concur, Davis, J., not participating. (Appeal from judgment of Supreme Court, Monroe County, Provenzano, J.— taxpayer action.) Present — Dillon, P. J., Callahan, Pine, Balio and Davis, JJ. [See, — AD2d — (May 11,1990).]

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Although State Finance Law § 123-c (4) provides that citizen-taxpayer actions "shall be promptly determined”, the record reveals that the court, without a trial, resolved disputed factual issues relating to the level of noise and the properties affected in plaintiffs’ favor "on the papers alone”, and entered final judgment on the merits. That was error (see, Matter of New York State Assn. of Plumbing-Heating-Cooling Contrs. v Egan, 65 NY2d 793).

Since neither party sought an accelerated judgment as a matter of law, we do not reach the issue whether the "facts” found by Special Term would constitute a violation of State Finance Law article 7-A. We note, however, that a citizen-taxpayer action lies " 'only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes’ ” (Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016; Kaskel v Impellitteri, 306 NY 73, 79; Fisher v Biderman, 141 Misc 2d 804, 809).

All concur, Davis, J., not participating. (Appeal from judgment of Supreme Court, Monroe County, Provenzano, J.— taxpayer action.) Present — Dillon, P. J., Callahan, Pine, Balio and Davis, JJ. [See, — AD2d — (May 11,1990).]

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158 A.D.2d 967, 552 N.Y.S.2d 190, 1990 N.Y. App. Div. LEXIS 1499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwarz-v-new-york-state-department-of-transportation-nyappdiv-1990.

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