United Services Automobile Ass'n v. Curiale

216 A.D.2d 163, 628 N.Y.S.2d 107, 1995 N.Y. App. Div. LEXIS 6553

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1995
• Status: Published

Opinion

Resettled order and judgment (one paper), Supreme Court, New York County (Charles Ramos, J., upon decision of Seymour Schwartz, J.), entered March 3, 1994, which, inter alia, granted plaintiffs motion for summary judgment, declared Tax Law § 1505-a (c) unconstitutional, and directed defendant to refund to plaintiff the sum of $76,389 with interest, unanimously affirmed, without costs.

We agree with the IAS Court that Tax Law § 1505-a (c), which disallows a credit for taxes paid by foreign insurers pursuant to section 1505-a against New York’s retaliatory tax (Insurance Law § 1112), although domestic insurers are granted such a credit, serves no legitimate governmental purpose as it applies to plaintiff. Plaintiff is a foreign insurer doing business in New York and subject to New York’s retaliatory tax. An intent to increase or protect revenues at the expense of foreign insurers does not constitute a legitimate governmental purpose sufficient to withstand an equal protection challenge (compare, Western & S. Life Ins. Co. v Board of Equalization, 451 US 648, 657). We have considered plaintiffs other contentions and find them to be without merit. Concur—Ellerin, J. P., Wallach, Nardelli, Tom and Mazzarelli, JJ.