STS Management Development Inc. v. New York State Department of Taxation & Finance

Mar 24, 1997
Versions:237 A.D.2d 510
655 N.Y.S.2d 575
1997 N.Y. App. Div. LEXIS 2897

In an action, inter alia, for a judgment declaring stated portions of the Tax Law to be void, and to recover damages under 42 USC § 1983 and § 1985 for the violation of their constitutional rights, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated January 31, 1996, as granted that branch of the defendants’ cross motion which was to dismiss their fourth cause of action.

Ordered that the order is reversed insofar as appealed from, with costs, that branch of the defendants’ motion which was to dismiss the fourth cause of action is denied, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

The Supreme Court improperly granted that branch of the defendants’ cross motion which was to dismiss the plaintiffs’ fourth cause of action which was to recover damages based upon an alleged retaliation for the exercise of their constitutionally protected rights, in violation of 42 USC § 1983. Initially, we note that in an action pursuant to 42 USC § 1983 the plaintiffs are not required to exhaust their administrative remedies (see, 423 S. Salina St. v City of Syracuse, 68 NY2d 474, cert denied 481 US 1008; Zinermon v Burch, 494 US 113, 124). Moreover, the plaintiffs’ claim of retaliation does not hinge upon factual issues which are "reviewable at the administrative level” (Matter of Corcella v Seifert, 181 AD2d 677, 678) since the facts underlying this claim are not related to the determination of the tax assessment itself (see, 423 S. Salina St. v City of Syracuse, supra, at 486). Instead, the issue to be determined is the defendants’ motivation and intent in ordering and conducting the assessment against the plaintiff STS Management Development Corporation (see, Gagliardi v Village of Pawling, 18 F3d 188, 195). Bracken, J. P., Santucci, Krausman and McGinity, JJ., concur.