Opinion
April 5, 1985
Appeal from the Supreme Court, Erie County, Green, J.
Present — Dillon, P.J., Doerr, Denman, Boomer and Schnepp, JJ.
Order unanimously affirmed, without costs. Memorandum: We agree with Special Term that Charter of the City of Buffalo § 324, which establishes a one-year Statute of Limitations for any "action or proceeding to test the validity or regularity of any tax or assessment", does not apply to the defendants' counterclaims for tax refunds. Here, there is no need for the taxpayers to "test the validity" of the taxes they paid since the taxes have already been declared unconstitutional for each of the tax years in question and the city cannot relitigate the question of the unconstitutionality of the taxes, for it is bound by the prior determination ( see, Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65; McCrory Corp. v. Gingold, 52 A.D.2d 23, lv denied 39 N.Y.2d 710).