684 N.Y.S.2d 117 | N.Y. App. Div. | 1998
—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly determined that the notice of claim requirement set forth in section 8-115 (3) of the Syracuse City Charter does not apply to an action for a judgment declaring that a provision of the City’s Tax and Assessment Act is unconstitutional. Section 8-115 (3) provides that “[n]o action or special proceeding, for any cause whatever * * * shall be prosecuted or maintained against the city unless it shall appear * * * that a written verified claim upon which such action or special proceeding is founded was served on the city”. The notice of claim requirement in Education Law § 3813 (1), which is similar to the notice of claim requirement in section 8-115 (3), does not apply to declaratory judgment actions seeking relief from a void real property tax (see, Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262, 267-268; Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 176, affd 41 NY2d 816). Further, the notice of claim requirement in Education Law § 3813 (1) does not apply where, as here, a party seeks to vindicate a public interest (see, Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371, 379-380, rearg denied 36 NY2d 807). We perceive no reason to reach a different result with respect to section 8-115 (3) of the Syracuse City Charter. A facial challenge to the constitutionality of a real property tax law raises only a legal issue. There is no need for the City to conduct an investigation and, because a declaration of unconstitutionality ordinarily is only applied to cases already in litigation (see, e.g., Matter of McCann v Scaduto, 71 NY2d 164, 178), there is no likelihood that the City would be faced with stale claims. Even in those cases where a factual issue may exist whether the tax law is constitutional as applied to the taxpayer, that factual issue usually is based on the City’s own tax and assessment records, and the City has “no need for a prior notice of claim to allow for investigation, adjustment or administrative action” (Niagara Mohawk Power Corp. v City School Dist., supra, at 271).
The court also properly determined that section 19-51 of the City’s Tax and Assessment Act fails to provide a property
Finally, we note that section 19-46 of the City’s Tax and Assessment Act does not provide property owners with actual notice by mail of the date of the tax sale and, on its face, is of dubious validity (see, Matter of McCann v Scaduto, supra; cf., Mennonite Bd. of Missions v Adams, supra). The court did not decide whether that section afforded due process to petitioner, and we note that there is a factual issue whether petitioner actually received notice by mail that would comport with due process. Thus, we do not reach the issue whether section 19-46 deprived petitioner of due process. (Appeal from Judgment of Supreme Court, Onondaga County, Murphy, J. — CPLR art 78.) Present — Denman, P. J., Pine, Pigott, Jr., Balio and Fallon, JJ.