Opinion
June 17, 1996
Appeal from the Supreme Court, Orange County.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted, and upon reargument, it is
Ordered that the unpublished decision and order of this Court dated February 26, 1996, is recalled and vacated and the following decision and order is substituted therefor:
In an action, inter alia, for a judgment declaring unconstitutional certain resolutions passed by the Town of Wallkill Town Board fixing water and sewer connection fees and traffic impact fees, the defendant appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Orange County (Silverman, J., on liability; Sherwood, J., on damages), entered September 6, 1994, as, upon granting the plaintiffs' motion for summary judgment on the issue of liability and after an inquest on the issue of damages, is in favor of the plaintiffs and against it in the principal sum of $775,923.
Ordered that the judgment is modified by deleting therefrom the provision awarding the plaintiffs the principal sum of $775,923 as reimbursement for the water and sewer connection fees and traffic impact fees that the plaintiffs paid to the defendant and substituting therefor a provision awarding the plaintiffs $252,000, as reimbursement for the water and sewer connection fees that the plaintiffs paid to the defendant under protest; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for a trial on the issue of the plaintiffs' payment of traffic impact fees to the defendant.
It is well settled that the payment of a tax or fee cannot be recovered after the taxing statute or rule has been declared illegal unless the taxpayer can demonstrate that the payment was involuntary (see, City of Rochester v. Chiarella, 58 N.Y.2d 316, 323). Payment under protest is an indication that a tax was not paid voluntarily (see, Mercury Mach. Importing Corp. v. City of New York, 3 N.Y.2d 418, 425).
Since the plaintiffs wrote "under protest" on several checks totalling $252,000 that they tendered to the defendant as payment for water and sewer connection fees, those fees were paid involuntarily. Accordingly, the plaintiffs are entitled to reimbursement of that amount (see, Video Aid Corp. v. Town of Wallkill, 85 N.Y.2d 663). However, the plaintiffs are not entitled to reimbursement of the remaining water and sewer connection fees that they paid to the defendant because they have not established that those payments, which were not made under protest, were tendered under duress. "Under duress" means more than business or economic inconvenience (see, Video Aid Corp. v. Town of Wallkill, supra, at 670).
The existence of numerous issues of fact regarding the circumstances surrounding the plaintiffs' payment of traffic impact fees to the defendant precludes the award of summary judgment to the plaintiffs on their claim for reimbursement of those fees.
The defendant's remaining contentions are without merit. Mangano, P.J., Bracken, Copertino and Pizzuto, JJ., concur.