Supreme Court of the State of New York
County of Erie
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DANIEL T. WARREN, Plaintiff, Vs. GEORGE E. PATAKI as Governor of the State of New York, et al., Defendants |
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Plaintiff’s Affidavit in Opposition to Defendants Joseph Passafiume, the Commissioner of the Erie County Finance Department , and The County of Erie, New York’s Motion For Summary Judgment
Index # I 2002-4880 |
Sate of New York )
County of Erie ) ss:
City of Buffalo )
I, Daniel T. Warren, being duly sworn, deposes and says:
1) I am the plaintiff in this action and as such I make this affidavit based upon my own personal knowledge of the facts set forth in the Verified Complaint and the Amended Verified Complaint as well as the facts set forth herein.
2) This action seeks declaratory and injunctive relief only. There is no claim for monetary damages nor is there a request for monetary damages incidental to the equitable relief sought.
3) I have standing to litigate the first cause of action contained in the Amended Verified Complaint, which is attached hereto and marked as Exhibit “A” and incorporated herein by reference.
4) I am a real property taxpayer who pays taxes on real property located in the Town of West Seneca, County of Erie and State of New York. This property has an assessed value in excess of $1,000.00.
5) I am a duly registered voter in the County of Erie, New York. I have voted in the general elections in this county on a regular basis and is qualified to, and will, vote in this upcoming November elections.
6) I pay State Income Taxes on my wages. I also pay State Sales Tax along with the compensating and use taxes imposed by Erie County under Articles 28 and 29 of the New York Tax Law on purchases made within the County of Erie and State of New York.
7) Therefore, I meet the statutory qualifications under General Municipal Law § 51 and State Finance Law Article 7-a.
8) I do also verily believe that I meet the qualifications for Common Law Taxpayer standing as more particular stated in my Memorandum of Law in Opposition to Defendant Pataki and Roth’s Motion to Dismiss dated August 6, 2002, which is incorporated by reference herein.
9) The County of Erie is a necessary party to this action because it may be inequitably affected by the judgment entered in this action.
10) Defendants Joseph Passafiume and the Commissioner of the Erie County Finance Department has intentionally, knowingly and willfully adopted and/or condoned the State Defendants illegal official acts as set forth in the Amended Verified Complaint.
11) The Erie County Legislature has enacted a local law establishing a Compensating and use tax of 4 % in accordance with Tax Law § 1210.
12) The State of New York is responsible for the collection and administration of Erie County’s 4% compensating and use tax by Tax Law § 1250.
13) Therefore, the State Defendants are “agents * * * and other persons acting, or who have acted, for and on behalf of any county * * * in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers * * * or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county" "A decision made without authority is an illegal official act." (GML § 51; Aldrich v. City of New York, 208 Misc. 930, 936, affd. 2 A.D.2d 760.)
Wherefore, Plaintiff respectfully prays for an order of this court denying the County Defendants’ Motion for Summary Judgment and awarding Plaintiff costs pursuant to CPLR §§ 8106, 8202 in a sum of up to $100.00 together with such other, further or different relief which the court deems just and proper.
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Daniel T. Warren
Duly sworn to before me this
___ day of August, 2002
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Notary Public