Opinion
No. 10360/09.
2010-12-23
Lawrence WAY, et al., Plaintiffs, v. CITY OF BEACON, Defendant.
Timothy P. McElduff, Jr., Esq., Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, for Plaintiffs. Michael Rhodes–Devey, Esq., Towne, Ryan & Partners, P.C., Albany, for Defendant.
Timothy P. McElduff, Jr., Esq., Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, for Plaintiffs. Michael Rhodes–Devey, Esq., Towne, Ryan & Partners, P.C., Albany, for Defendant.
JAMES D. PAGONES, J.
The defendant moves for an order dismissing the plaintiffs' complaint pursuant to CPLR Rule 3211. The defendant asserts that the action was not filed within the applicable statute of limitations; that the plaintiff failed to file its Notice of Claim within 90 days of the alleged wrongdoing; that the pleadings fail to state a cause of action; and that the plaintiffs failed to preserve their claim by protesting the alleged overpayment of taxes.
The plaintiffs cross-move for an order pursuant to CPLR Rule 3025 for leave to amend the complaint. Specifically, the plaintiffs seek to add Joseph Braun, the former administrator for the City of Beacon, as a defendant and to add two causes of action under 42 U.S.C. § 1983 for the alleged deprivation of the plaintiffs' right to due process and equal protection. Plaintiffs also seek leave pursuant to Article 9 of the CPLR to bring claims on behalf of all City of Beacon (the “City”) non-homestead real property owners who overpaid taxes as a result of the City's apportionment of taxes between homestead and non-homestead properties.
The relevant facts are not in dispute. The plaintiffs are owners of non-homestead commercial property located in the City. On October 15, 2008, the Mayor of the City of Beacon announced at a special meeting of the Beacon City Counsel that the City's tax levy for 2008, and ten years prior, was improperly divided between homestead and non-homestead properties. The resulting effect was that homestead property owners were underpaying their share of the City's tax burden while non-homestead property owners were overpaying on taxes. Subsequently, on June 1, 2009, the Mayor of the City of Beacon announced that the City would not return any tax overpayments made by the non-homestead property owners.
On December 31, 2009, the plaintiffs commenced the instant proceeding alleging causes of action for money had and received, unjust enrichment, quasi-contract, declaratory judgment, and constructive trust.
MOTION TO DISMISS
It is well settled that on any motion pursuant to CPLR Rule 3211, the court “must take the allegations (of the complaint) as true and resolve all inferences which reasonably flow therefrom in favor of the pleader.” (Cron v. Hargro Fabrics, Inc., 91 N.Y.2d 362, 366 [1998].) To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. ( Kennedy v.. Fischer, 2010 N.Y. Slip Op 8709 [2nd Dept.2010].) The burden then shifts to the plaintiff to allege evidentiary facts establishing that his cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies. ( Id.)
General Municipal Law Section 50–I provides that tort claims against a municipality must be asserted “within one year and ninety days after the happening of the event upon which the claim is based”. The period of limitations under Gen. Mun. Law § 50–I is not tolled pending discovery by the plaintiff of his injuries or damages. (Klein v. City of Yonkers, 53 N.Y.2d 1011 [1981];Doyle v. Bassolino, 72 A.D.2d 761 [2nd Dept.1979]; Kitonyi v. Albany, 128 A.D.2d 1018 [3rd Dept.1987].)
Where an action is brought against a municipality for both injunctive relief and money damages, the time constraints set forth in Gen. Mun. Law § 50–I will apply only if the primary relief requested is money damages. (Fontana v. Town of Hempstead, 18 A.D.2d 1084 [2nd Dept.1963], aff'd13 N.Y.2d 1134.) Whether the demand for damages is subordinate to injunctive relief is determined by considering the complaint in light of all its allegations and its full scope and purport. ( Id., at 1084);Watts v. Town of Gardiner, 90 A.D.2d 615 [3rd Dept.1982].)
The defendants have established, prima facie, that the plaintiffs' time to sue has expired. The last period in which the City applied the incorrect calculation was for the 2008 City Real Property Tax Assessment. Those taxes were assessed and became a lien on plaintiffs' property on January 1, 2008. It was thereafter incumbent upon the plaintiffs to initiate their claim within one year and ninety days. The plaintiffs' action was not commenced until December 31, 2009 and is therefore untimely.
The plaintiffs have failed to allege any evidentiary facts establishing that their cause of action falls within an exception to the statute of limitations or to raise an issue of fact as to whether such an exception applies. The plaintiffs assert that their claim did not accrue until June 1, 2009, when the City announced it was refusing to make any refunds to non-homestead taxpayers for its incorrect tax apportionment calculations. Alternatively, the plaintiffs claim that they were first made aware of the City's miscalculation of homestead and non-homestead tax shares on October 28, 2008 and argue that the period of limitations could not begin to run until the City disclosed its error. There is no support in the law for the plaintiffs' contention that the statute of limitations in Gen. Mun. Law § 50–I accrues from the date the injury is discovered. The event upon which the plaintiffs' claim is based is the assessment of taxes, not the refusal to refund the overpayments or the disclosure of the error by the City. Critically, the plaintiffs made no allegation that they delayed initiation of this action or otherwise relied to their detriment on any representations made by the defendant which would thereby justify tolling the statute of limitations.
The plaintiffs' action also cannot be said to primarily seek injunctive relief thereby exempting them from complying with the time limits set forth in Gen. Mun. Law § 50–I. Upon reading the complaint it is the court's determination that the plaintiffs' main objective is to recoup the alleged overpayment of taxes made to the defendant.
Therefore, it is ordered that the defendant's motion to dismiss is granted and plaintiffs' first, second, third, fourth and fifth causes of action are dismissed. In light of this determination, the Court need not reach the defendant's remaining contentions.
CROSS–MOTION FOR LEAVE TO AMEND
CPLR Rule 3025(b) specifically provides: “A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of the court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.”
It has been held that a decision to grant or deny leave to amend is within the court's discretion and such exercise shall not be lightly disturbed. (Duffy v. Bass & D'Allesandro, Inc., 245 A.D.2d 333 [2nd Dept.1997].) Although the court has broad discretion in determining such an application, it must consider any potential prejudice to defendants, any inordinate delay and whether the proposed amendment lacks merit. (Noanjo Clothing, Inc. V. L & M Kids Fashion, Inc., 207 A.D.2d 436 [2nd Dept.1994].) The court's inquiry into merit is limited to whether the proposed amendment is patently devoid of merit or is palpably insufficient. (Kinzer v. Bederman, 59 AD3d 496 [2nd Dept.2009].)
Initially, the court notes that it shares concurrent jurisdiction with federal courts over action brought under section 1983 of title 42 of the United States Code. (McKinney v. New York, 78 A.D.2d 884 [2nd Dept.1980] ).
The plaintiffs' proposed amendment to their complaint is not devoid of merit and is not palpably insufficient. The plaintiff has set forth recent changes of circumstances justifying the amendment and the defendants have not demonstrated surprise or prejudice. Additionally, this proceeding is still in its early stages and neither discovery nor depositions have been conducted. Therefore, it is ordered that the plaintiff's cross-motion is granted and they shall have leave to file and serve an amended complaint in conformity with this order within thirty days of the date of this order.
The Court read and considered the following documents upon this application:
PAGES NUMBERED
+-------------------------------+ ¦1. Notice of Motion ¦1–2 ¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦Affidavit–Rhodes–Devey ¦1–3 ¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦Exhibits ¦A ¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦Memorandum of Law ¦1–19¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦Exhibits ¦A ¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦2. Notice of Cross–Motion ¦1–2 ¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦Affirmation–McElduff ¦1–4 ¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦Exhibits ¦A–F ¦ +--------------------------+----¦ ¦ ¦ ¦ +--------------------------+----¦ ¦Memorandum of Law ¦1–23¦ +-------------------------------+
The foregoing constitutes the decision and order of the Court.