Opinion
July 23, 1992
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
Since plaintiffs challenge the applicability and/or constitutionality of Tax Law § 1105 (b), and not merely the amount of an assessment, declaratory relief is appropriate. The fact that an SPAA is not an actual assessment does not render the instant controversy unripe for review. Indeed, as the IAS court aptly noted, declaratory relief seeks to adjudicate rights before a "`wrong'" occurs (Klostermann v. Cuomo, 61 N.Y.2d 525, 538). Moreover, since this controversy concerns the applicability and/or constitutionality of a tax statute, plaintiffs were not obligated to exhaust their administrative remedies before instituting the action (see, Allstate Ins. Co. v. Tax Commn., 115 A.D.2d 831, 834, affd 67 N.Y.2d 999). Finally, the IAS court properly granted plaintiffs a preliminary injunction tolling the 90-day Statute of Limitations period in which to administratively challenge a tax assessment (see, Tully v. Griffin, Inc., 429 U.S. 68).
Concur — Sullivan, J.P., Milonas, Rosenberger, Ellerin and Kassal, JJ.