Supreme Court of the State of New York
County of Erie
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Plaintiff, Vs. GEORGE E. PATAKI as Governor of the State of New York, et al., Defendants |
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Plaintiff’s Memorandum of Law 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 |
Applicable Standard
CPLR § 2214(b) provides, in relevant part, that “A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits shall be served at least seven days before such time if a notice of motion served at least twelve days before such time so demands; whereupon any reply affidavits shall be served at least one day before such time."
CPLR § 2215 provides “Relief demanded by other than moving party. At least three days prior to the time at which the motion is noticed to be heard, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers. Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party”
After joinder of issue, a party may move for summary judgment within 120 days of the filing of a note of issue, or even later upon showing of good cause (CPLR 3212[a]; Lockheed Martin Corp. v. Aatlas Commerce Inc. (3rd Dept. 05/17/2001)).
"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067). It is well established that an affidavit or affirmation of an attorney, not based upon personal knowledge, "is without evidentiary value and thus unavailing" (Zuckerman v City of New York, 49 N.Y.2d 557, 563). Moreover, the failure of the proponent of a summary judgment motion to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853). On a motion for summary judgment, the court's role is issue finding, not issue determination. The motion court should view the evidence in the light most favorable to the non-movant (Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182; Simpson v Simpson, 222 AD2d 984, 986; Citibank, N.A. v Dutka, 74 AD2d 520, 521, appeal dismissed 50 NY2d 928), and may not evaluate the parties' credibility to decide whose version of the facts is true (Consolidated Edison Co. of New York v Jet Asphalt Corp., 132 AD2d 296, 299). On August 1, 2002 Plaintiff filed a Supplemental Summons with Amended Verified Complaint in accordance with CPLR §§ 1003, 3025(a). This motion is directed, if at all, only at the first cause of action of the amended verified complaint since the other two causes of action were not contained in the original verified complaint. To this extent the County Defendants argues that the Plaintiff lacks standing and that the complaint alleges negligence in the performance of Erie County government functions for which they are immune from liability.
Argument
Point I
County Defendants Request for Answering Papers is Improper
The County Defendants in their Notice of Cross Motion included a CPLR § 2214(b) notice requiring that answering papers be served at least 7 days prior to the return date. However, in order for this notice to be valid they must have served their Notice of Motion 12 days prior to the return date and 17 days before then if served by mail (CPLR § 2103). CPLR § 2214(b) requires that a notice of motion give the opponent at least 8 days notice or 13 days if served by mail (CPLR § 2103). The County Defendants’ moving papers are dated August 7, 2002 and states that the return date is August 16, 2002 and they were served by mail. The cross motion is timely under CPLR § 2215 however, they may not require that answering papers be served at least 7 days prior to the return date.
Point II
County Defendants’ Motion is Premature
The County Defendants’ cross motion for summary judgment is premature because an answer to the Amended Verified Complaint filed in the Erie County Clerk’s Office on August 1, 2002 and delivered to the County Defendants on August 6, 2002 had not yet been interposed (CPLR 3212(a); see, Peterson v State of New York, 130 A.D.2d 813, 814). This alone is sufficient to base a denial of this motion on.
If the County Defendants wish the court may treat this motion as one to dismiss the first cause of action alleged in the Amended Verified Complaint under CPLR 3211(a)(3) and this motion must then fail for the reasons set forth in Plaintiff’s Memorandum of Law in Opposition to Defendant Pataki and Roth’s Motion to Dismiss which is incorporated herein by reference as if fully set forth hereat.
Point III
Movants have not met Their Initial Burden Required for Summary Judgment
-- Standing --
The County Defendants’ motion for summary judgment is supported only by the affidavit of their counsel. Nowhere in this affidavit does he factually dispute either the Verified Complaint or the Amended Verified Complaint. Mr. Attea does not aver that he even has personal knowledge except that he is “fully familiar with the facts and prior proceedings of this action.”
Additionally, although the original complaint was verified, the County Defendants’ Answer was not. An unverified pleading or a pleading that is verified by counsel with no personal knowledge is insufficient to support a motion for summary judgment. (see, Alvarez v Prospect Hosp., 68 NY2d 320, 327; Brown v Heller, 676 NYS2d 519; Matter of Allen, 210 AD2d 856). In contrast both the Verified Complaint and the Amended Verified Complaint was verified by myself, a person with personal knowledge together with the accompanying affidavit.
It is also remarkable that although the County Defendants now move for summary judgment, but in their answer they admitted two allegations without qualification, admitted one allegation with qualification, denied one allegation, denied with qualification one allegation, denied knowledge or information sufficient to form a belief on 35 allegations, and deferred to the statutes in 7 allegations.
Furthermore, the affidavit of Mr. Attea does not act to convey admissible documentary evidence other than the Summons with Notice, Demand for Complaint, the Verified Complaint and their unverified Amended Answer.
Since the County Defendants have failed to factually challenge let alone establish as a matter of law that I lack standing under either General Municipal Law § 51, State Finance Law § 123-b, or Common Law Taxpayer Standing they have not met their initial burden as a proponent of a motion for summary judgment. Namely, to make a prima facie showing of entitlement to judgment as a matter of law. It is axiomatic that if one cannot defeat a motion for summary judgment by “general conclusory allegations which contain no specific factual references." Hanson v. Ontario Milk Products Coop. Inc. 58 Misc. 2d 138, 294 N.Y.S.2d 936 (1968), Siegel: McKinney's Practice Commentaries C3212:16, a proponent of a motion for summary judgment cannot base it on general conclusory allegations which contain no specific factual references.
-- Immunity --
It is well settled that generally the County Defendants’ rule-making activity is a purely governmental function involving the exercise of discretion for which the defendant enjoys immunity from suit (Florence v Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763; Gross v State of New York, 33 A.D.2d 868, 306 N.Y.S.2d 28; Abruzzo v State of New York, 84 A.D.2d 876, 877, 444 N.Y.S.2d 739; Casarona v Pace, 175 Misc 269, 271, 22 N.Y.S.2d 726). This is true for actions seeking monetary damages not declaratory and injunctive relief as in the case at bar.
There are, however, limits to the breadth of executive power. The State Constitution provides for a distribution of powers among the three branches of government (see NY Const, art III, § 1; art IV, § 1; art VI). This distribution avoids excessive concentration of power in any one branch or in any one person. Where power is delegated to one person, the power is always guided and limited by standards. In fact, even the Legislature is powerless to delegate the legislative function unless it provides adequate standards (Packer Coll. Inst. v University of State of N. Y., 298 NY 184, 189). Without such standards there is no government of law, but only government by men left to set their own standards, with resultant authoritarian possibilities.
In this State the executive branch has the power to enforce legislation and is accorded great flexibility in determining the methods of enforcement (see NY Const, art IV, § 3). But executives may not "go beyond stated legislative policy and prescribe a remedial device not embraced by the policy" (Matter of Broidrick v Lindsay, 39 N.Y.2d 641, 645-646). And, as noted in the Broidrick case, decided unanimously, the flexibility allowed the executive in designing an enforcement mechanism depends upon the nature of the problem to be solved (id., p 646). Where it would be practicable for the Legislature itself to set precise standards, the executive's flexibility is and should be quite limited.
"The object of a written Constitution is to regulate, define and limit the powers of government by assigning to the executive, legislative and judicial branches distinct and independent powers. The safety of free government rests upon the independence of each branch and the even balance of power between the three. . . . It is not merely for convenience in the transaction of business that they are kept separate by the Constitution, but for the preservation of liberty itself." [New York State Bankers Association, Inc. v. Wetzler, 81 N.Y.2d 98, 105 (1993), quoting, People ex rel. Burby v. Howland, 155 N.Y. 270, 282 (1898)].
When language of a constitutional provision is plain and unambiguous, full effect should be given to "the intention of the framers ... as indicated by the language employed" and approved by the People (Settle v Van Evrea, 49 NY 280, 281 [1872]; see also, People v Rathbone, 145 NY 434, 438). In a related governance contest, the Court of Appeals found "no justification ... for departing from the literal language of the constitutional provision" (Anderson v Regan, 53 N.Y.2d 356, 362 [emphasis added]). As the Court stated in Settle v Van Evrea: "[I]t would be dangerous in the extreme to extend the operation and effect of a written Constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be, to some extent, within the reasons which led to the introduction of some particular provision plain and precise in its terms. That would be pro tanto to establish a new Constitution and do for the people what they have not done for themselves" (49 NY 280, 281, supra). If the guiding principle of statutory interpretation is to give effect to the plain language (Ball v Allstate Ins. Co., 81 N.Y.2d 22, 25; Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 N.Y.2d 657, 661; McKinney's Cons Laws of NY, Book 1, Statutes § 94), "[e]specially should this be so in the interpretation of a written Constitution, an instrument framed deliberately and with care, and adopted by the people as the organic law of the State" (Settle v Van Evrea, 49 NY, at 281, supra). These guiding principles do not allow for interstitial and interpretative gloss by the courts or by the other Branches themselves that substantially alters the specified law-making regimen. Courts do not have the leeway to construe their way around a self-evident constitutional provision by validating an inconsistent "practice and usage of those charged with implementing the laws" (Anderson v Regan, 53 N.Y.2d 356, 362, supra; see also, People ex rel. Burby v Howland, NY 270, 282; People ex rel. Crowell v Lawrence, 36 Barb 177, affd 41 NY 137; People ex rel. Bolton v Albertson, 55 NY 50, 55, supra).
The New York Constitution Article XVI § 1 requires that any exemption from taxation be enacted in the form of a general statute.
Section 1 of Article XVI of the New York Constitution separately prohibits any attempt to contract away the power of taxation unless sanctioned by the people themselves. (Cf., e.g., as to housing, N. Y. Const., art. XVIII, § 2.) A contract for a pre-established limit on tax liability, whether it be considered as conferring 'tax exemption' or 'tax savings', or tax relief by any other label, is clearly barred by this sweeping prohibition. This same sweeping prohibition also separately prohibits any attempt to suspend the power of taxation. In Matter of Roosevelt Raceway v. Monaghan (9 N.Y.2d 293). Therefore, any agreement that the Executive Defendants may have with any one limiting or agreeing to this policy is void absent legislative approval.
There is no general statute exempting sales to non-indians on Indian Land situated in the State of New York from taxation. Section 3 (subd [d], par [1]) of article IX of the State Constitution defines a general law as one "which in terms and in effect applies alike to all counties * * * all cities, all towns or all villages." A law may be enacted only by a legislative body, which the executive clearly is not (see, Schumer v Caplin, 241 NY 346, 351-352). It is also well settled that the state may place minimal burdens on Indian Retailers and tribes to collect and remit the taxes that are the subject of this action (see Department of Taxation & Fin. of N.Y. v Milhelm Attea & Bros., 512 U.S. 61, 129 L. Ed. 2d 52, 114 S. Ct. 2028; Snyder v. Wetzler, 620 N.Y.S.2d 813; 84 N.Y.2d 941 (1994))
Ambiguity in tax statutes should, of course, "be construed in favor of the taxpayer and against the taxing authority, and the burdens they impose are not to be extended by implication" (Matter of American Cyanamid & Chem. Corp. v Joseph, 308 NY 259, 263, 125 N.E.2d 247; Quotron Systems, Inc. v Gallman, 39 N.Y.2d 428, 431, 384 N.Y.S.2d 147, 348 N.E.2d 604). Correspondingly, tax statutes should be construed to insure the collection of all designated taxes where a supportable theory can be found (see, Matter of 1605 Book Center, Inc. v Tax Appeals Tribunal of New York, 83 NY2d 240; Bryant v. New York City Health and Hospitals Corp., 93 N.Y.2d 592, 716 N.E.2d 1084, 695 N.Y.S.2d 39 (N.Y. 07/01/1999); County of Nassau v Lincer, 254 A.D. 746, 254 App Div 760, 4 N.Y.S.2d 77, affd 280 NY 662, 20 N.E.2d 1018; see also, McKinney's Cons Laws of NY, Book 1, Statutes § 313).
Because the Indian Retailers and their non-Indian customers seek the benefit of an exemption from taxation, they carry the burden of proving that their claim falls within the language of the exemption (see, Matter of St. Joe Resources Co. v New York State Tax Commn., 132 A.D.2d 98, 102, 522 N.Y.S.2d 252 [Yesawich Jr., J., dissenting], revd on dissenting opn below 72 N.Y.2d 943; see also, Matter of Grace v New York State Tax Commn., 37 N.Y.2d 193, 196, 371 N.Y.S.2d 715, 332 N.E.2d 886). An exemption is not a matter of right but a matter of legislative grace; therefore, a statute creating an exemption will be construed against the taxpayer (see, Matter of Grace v New York State Tax Commn., supra, at 196).
The Defendants who are County and State executives can only promulgate rules to further the implementation of the law as it exists; they have no authority to create a rule out of harmony with the statute (Matter of Jones v. Berman, 37 N.Y.2d 42, 57, 371 N.Y.S.2d 422, 332 N.E.2d 303). They also may not, under the guise of administering the statute ascribe a different or unreasonable meaning to its terms (Matter of Rosenbluth v. Finkelstein, 300 N.Y. 402, 91 N.E.2d 581). An executive cannot by regulatory fiat directly or indirectly countermand a statute enacted by the Legislature (Servomation Corp. v. State Tax Commn, 51 N.Y.2d 608, 612, 435 N.Y.S.2d 686, 416 N.E.2d 1022). As Judge Pound held: "Laws are made by the lawmaking power, and not by administrative officers acting solely on their own ideas of sound public policy, however excellent such ideas may be" (Matter of Picone v. Commissioner of Licenses of City of New York, 241 N.Y. 157, 162, 149 N.E. 336). Although administrative agencies have discretion to carry out their legislative mandates, they have no discretion to ignore those mandates or to alter the substantive standards set by the legislature. State Division of Human Rights v. Genesse Hospital, 50 N.Y.2d 113, 118 (1980); Zalenski v. Crucible Steel Inc., 91 A.D.2d 807, 809 (3d Dep't 1982) whether it be through negligence, reckless disregard, intentional conduct or through malevolent disinterest.
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.
DATED: August 13, 2002
Buffalo, New York
Yours, etc.,
_______________________________
Daniel T. Warren
Plaintiff, Pro Se
836 Indian Church Road
West Seneca, New York 14224-1235
TO: Peter B. Sullivan, Esq.
Office of the Attorney General
107 Delaware Avenue
Buffalo, New York 14202
CC: Frederick G. Attea, Esq.
Erie County Department of Law
69 Delaware Ave. – Suite 300
Buffalo, New York 14202