Opinion
2017–13305 2018–05977 Index No. 600868/17
08-21-2019
Jeffrey P. FALK, etc., Appellant, v. NASSAU COUNTY, et al., Respondents.
McLaughlin & Stern LLP, New York, N.Y. (Lee S. Shalov and Wade C. Wilkinson of counsel), for appellant. Jared A. Kasschau, County Attorney, Mineola, N.Y. (Christi Marie Kunzig and Robert F. Van der Waag of counsel), for respondents.
McLaughlin & Stern LLP, New York, N.Y. (Lee S. Shalov and Wade C. Wilkinson of counsel), for appellant.
Jared A. Kasschau, County Attorney, Mineola, N.Y. (Christi Marie Kunzig and Robert F. Van der Waag of counsel), for respondents.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER In a putative class action, inter alia, for declaratory and injunctive relief, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered October 3, 2017, and (2) an order of the same court entered January 23, 2018. The order entered October 3, 2017, insofar as appealed from, (a) granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to compel the defendants to disgorge all fees collected pursuant to Nassau County Administrative Code § 6–33.0 from January 4, 2016, to the present, and to dismiss the second, third, and fourth causes of action, alleging unjust enrichment, conversion, and money had and received, respectively, and (b) denied the plaintiff's application for leave to amend the complaint. The order entered January 23, 2018, insofar as appealed from, upon reargument, adhered to the determination in the order entered October 3, 2017, granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to compel the defendants to disgorge all fees collected pursuant to Nassau County Administrative Code § 6–33.0 from January 4, 2016, to the present, and to dismiss the second, third, and fourth causes of action.
ORDERED that the appeal from the order entered October 3, 2017, is dismissed, as the portion of that order denying the plaintiff's application for leave to amend the complaint is not appealable as of right and leave to appeal has not been granted (see CPLR 5701[a] ), and the remainder of the order has been superseded by the order entered January 23, 2018, made upon reargument; and it is further,
ORDERED that the order entered January 23, 2018, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
According to the complaint in this action, the plaintiff, Jeffrey P. Falk, purchased a home in Nassau County in 2016. He alleges that he paid a title company $1,255 to record his deed and mortgage with the County, $450 of which represented fees necessary to obtain two tax map certification letters from the County Clerk as required under Section 6–33.0 of the Nassau County Administrative Code (hereinafter NCAC).
In 2017, the plaintiff commenced this putative class action against the County and the Nassau County Department of Assessments (hereinafter together the defendants). The first cause of action sought a judgment declaring, inter alia, that the fees imposed pursuant to NCAC § 6–33.0 are excessive and not reasonably necessary to accomplish the defendants' responsibility to maintain the County's registry. The first cause of action also sought to compel the defendants to disgorge all fees collected pursuant to NCAC § 6–33.0 from January 4, 2016, to the present. The second, third, and fourth causes of action alleged unjust enrichment, conversion, and money had and received, respectively.
The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint, inter alia, on the ground that the plaintiff failed to allege that he paid the fees under protest. In opposition, the plaintiff conceded that the fees were paid without formal protest, but nevertheless maintained that the payment was the result of a mistake of fact or, alternatively, was made under duress. The Supreme Court partially denied the defendants' motion, determining that the complaint sufficiently stated a cause of action for a judgment declaring, inter alia, that the fees imposed pursuant to NCAC § 6–33.0 are excessive and not reasonably necessary to accomplish the defendants' responsibility to maintain the County's registry. However, the court granted those branches of the defendants' motion which were to dismiss so much of the first cause of action as sought to compel the defendants to disgorge all fees collected pursuant to NCAC § 6–33.0 from January 4, 2016, to the present, and to dismiss the causes of action alleging unjust enrichment, conversion, and money had and received. Upon reargument, the court adhered to its determination granting those branches of the defendants' motion. The plaintiff appeals.
On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the court will accept the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Matter of Walton v. New York State Dept. of Correctional Services, 13 N.Y.3d 475, 484, 893 N.Y.S.2d 453, 921 N.E.2d 145 [internal quotation marks omitted] ). "In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" ( Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [internal quotation marks omitted] ). "The settled law is that the payment of a tax or fee cannot be recovered subsequent to the invalidation of the taxing statute or rule, unless the taxpayer can demonstrate that the payment was involuntary" ( Video Aid Corp. v. Town of Wallkill, 85 N.Y.2d 663, 666, 628 N.Y.S.2d 18, 651 N.E.2d 886 ). "Payment under express protest is an indication that a tax [or fee] is not paid voluntarily" ( id. at 667, 628 N.Y.S.2d 18, 651 N.E.2d 886 ; see Mercury Mach. Importing Corp. v. City of New York, 3 N.Y.2d 418, 424–425, 165 N.Y.S.2d 517, 144 N.E.2d 400 ; Imperial Gardens v. Town of Wallkill, 228 A.D.2d 562, 563, 644 N.Y.S.2d 528 ). Where the payment is "necessary to avoid threatened interference with present liberty of person or immediate possession of property, the failure to formally protest will be excused" ( Video Aid Corp. v. Town of Wallkill, 85 N.Y.2d at 667, 628 N.Y.S.2d 18, 651 N.E.2d 886 ; see Five Boro Elec. Contrs. Assn. v. City of New York, 12 N.Y.2d 146, 237 N.Y.S.2d 315, 187 N.E.2d 774 ; see also Adrico Realty Corp. v. City of New York, 250 N.Y. 29, 164 N.E. 732 ). "Further, where the payment of a tax or fee is based on a material mistake of fact, the payment may be recovered even if it was made without protest" ( Matter of Joy Apts., LLC v. Town of Cornwall, 160 A.D.3d 958, 960, 75 N.Y.S.3d 249 ; see Mercury Mach. Importing Corp. v. City of New York, 3 N.Y.2d at 425, 165 N.Y.S.2d 517, 144 N.E.2d 400 ; Matteawan On Main, Inc. v. City of Beacon, 109 A.D.3d 590, 591, 970 N.Y.S.2d 631 ).
Here, it is undisputed that the plaintiff did not pay the fees under protest. Viewing the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the payment was not made under duress (see Matter of Walton v. New York State Dept. of Correctional Servs., 13 N.Y.3d at 489, 893 N.Y.S.2d 453, 921 N.E.2d 145 ; Matter of Joy Apts., LLC v. Town of Cornwall, 160 A.D.3d at 960, 75 N.Y.S.3d 249 ; Bushwick Hotel v. Department of Fin. of City of N.Y., 273 A.D.2d 129, 709 N.Y.S.2d 555 ; Imperial Gardens v. Town of Wallkill, 228 A.D.2d at 563, 644 N.Y.S.2d 528 ; cf. Adrico Realty Corp. v. City of New York, 250 N.Y. at 39, 164 N.E. 732 ; Bias Limud Torah v. County of Sullivan, 290 A.D.2d 856, 736 N.Y.S.2d 523 ) or due to a mistake of fact (see Matter of Joy Apts., LLC v. Town of Cornwall, 160 A.D.3d at 960, 75 N.Y.S.3d 249 ; Dillon v. U–A Columbia Cablevision of Westchester, 292 A.D.2d 25, 27, 740 N.Y.S.2d 396, affd 100 N.Y.2d 525, 760 N.Y.S.2d 726, 790 N.E.2d 1155 ; Gimbel Bros. v. Brook Shopping Ctrs., 118 A.D.2d 532, 534, 499 N.Y.S.2d 435 ).
Accordingly, we agree with the Supreme Court's determination, upon reargument, adhering to its prior determination granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to compel the defendants to disgorge fees collected pursuant to NCAC § 6–33.0.
We also agree with the Supreme Court's determination, upon reargument, adhering to its prior determination granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging unjust enrichment, conversion, and money had and received (see MacDonell v. PHH Mtge. Corp., 45 A.D.3d 537, 539, 846 N.Y.S.2d 223 ).
SCHEINKMAN, P.J., COHEN, MALTESE and LASALLE, JJ., concur.