Jurisdictional Statement — 423 South Salina Street, Inc. v. City of Syracuse, Metropolitan Development Foundation of Central New York, Inc., and Amlea (New York), Inc.

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Text

FILED

FEB i 198!

EPpy F. SPANIOL, JR.

=LERK

7 —

In The

Supreme Court of the United States

OCTOBER TERM, 1986

423 SOUTH SALINA STREET, INC.,

Appellant,

CITY OF SYRACUSE, METROPOLITAN DEVELOPMENT

FOUNDATION OF CENTRAL NEW YORK, INC., AND

AMLEA (NEW YORK), INC.;

Appellees.

JURISDICTIONAL STATEMENT

MOUSAW, VIGDOR, REEVES,

HEILBRONNER & KROLL

(James S. Grossman, *

Justin L. Vigdor)

600 First Federal Plaza

Rochester, New York 14614

Telephone: (716) 325-2500

OSCAR G. CHASE

40 Washington Square South

New York, New York 10012

Telephone: (212) 598-2574

*Counsel of Record

February 12, 1987

LPL I in LI ATI TALI MENT SETS EOD LAT OTE BRONTE! MM NR

Daily Record Corporation

Rochester, New York (13264)

QUESTION PRESENTED

Whether a plaintiff asserting federal constitutional rights pur-

suant to the Civil Rights Act, 42 U.S.C. §!983, may validly be

required by state law to serve a notice of claim within ninety days

of the event giving rise to liability as a condition precedent to the

maintenance of the action?

PARTIES TO THE PROCEEDING

The parties to the proceeding are 423 South Salina Street, Inc.

and City of Syracuse.

Pursuant to Rule 10.4 of the United States Supreme Court,

Appellant hereby asserts its belief that Metropolitan Develop-

ment Foundation of Central New York, Inc. and Amlea (New

York) Inc., who were Defendants below, have no interest in the

outcome of this Appeal.

423 South Salina Street, Inc. has no subsidiaries or corporate

affiliate.

iil

TABLE OF CONTENTS

ie Lk dae se deun peaneaeanhes

Perret rere eeeereeerrere

EN er

GSES ee

en a aa ge A a ao a

Constitutional Provisions and Statutes Involved.......

Statement of the Case and How the Federal Question

ee ee Gas 6 bb aba ce eee co

The Questions Are Substantial ......................

I — The Many Conflicting Decisions On The Point At

Issue Call For Resolution By This Court .........

II — The Holding Below Imposes Substantial Burdens

On The Assertion Of Federal Rights.............

III — Federal Law Does Not Permit Civil Rights

Claims To Be So Burdened .....................

Page

TABLE OF AUTHORITIES

Page

Constitution

Ce ee Oe, WOOD cane kdnddsssaasernnneenden Tae -

Statutes and Ordinances

Civil Rights Act

eck caneccdeussaacussleguee sue ae 13

EE icc des cau bans eeecee 1,2,9, 10, 11, 13, 18

"ol Salt) er ees 1.3, 3, ig, 1. OF

Tax Injunction Act, 28 U.S.C. §1341 ............2+-5- i)

I Oe hk ba ies ta eh eect anh arenen ss 2

N.Y. Education Law, § 3813(1) (McKinney 1981) ...... 18

N.Y. General Municipal Law (McKinney 1986)

PR aacb bss vives edaae ie evenetberaas 1,3, 8,10, 14,17

| Beer ae are errr er ree ‘7, 1, 0, 4. 33,07

N.Y. Public Authorities Law,

§§ 1212, 1276 (McKinney 1982) ............------- 18

§ 1691 (McKinney 1981) ...........2. 02 ce esoecee 18

N.Y. Public Housing Law, § 157 (McKinney Supp. 1987) 18

Syracuse City Charter, § 8-115, Civil Actions Against the

ac sk cus vlan sbunenw eas sbeeb eter se aannawas 8,18

Cases

Baehre v. County of Erie, 94 A.D.2d 943, 464 N.Y.S.2d

re Ns IN ooo bb Rae eke eee k Ree was

Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct.

i en EERE ET RESORT EET TET eT eee

Brandon v. Board of Education, 635 F.2d 971 (CA2

1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970 (1981)

Brown vy. United States, 742 F.2d 1498 (CADC 1984) (en

banc), cert. denied, 471 U.S. 1073, 105 S.Ct. 2153

(1985) (Chief Justice Burger and Justice White dissent-

ing from the denial of certiorari) ..................

Bullard v. City of New York, 118 A.D.2d 447, 499

N.Y.S.2d 880 (1st Dept. 1986) (Kassal, J. concurring).

Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924

i PEE ee ie Seer rem aay Parr re Pathe 17,

Burns v. City of New York, 21 A.D.2d 767 (1st Dept.

FOE 8 bE NA can cde bak peee ee eee

Cardo v. Lakeland School District, 592 F.Supp. 765

GEASS. oe WE Ahh sb cae eG nen k wanna.

Caselli v. City of New York, 105 A.D.2d 251, 483

PY. V0 GOS Cae Wet. TSG). es ccc ckcuedi ces

City of Riverside v. California, 106 S.Ct. 2686 (1986)...

Deary v. Three Un-Named Police Officers, 746 F.2d 185

(Higginbotham, J., dissenting and concurring) (CA3

SOUND sb cdewndsitxneevastee ewes

Doe v. Ellis, 103 Wis.2d 581, 309 N.W.2d 375 (1981)....

Page

18, 19

Faubert v. New York, 90 A.D.2d 509, 455 N.Y.S.2d 24

(24 Damt. 19GB). i ccccccesunseeseteepeesusesncuns

Figueroa v. New York, 92 A.D.2d 908, 460 N.Y.S.2d 199

(26 Demt. WEED «vn ceccddvaeceediak ct aeeedeteeets

423 South Salina Street, Inc. v. City of Syracus2, 566

F.Supp. 484 (N.D.N.Y. 1983), aff'd, 724 F.2d 26 (CA2

SOG onnk os cadscovcedseedenssteuenatenmsaeee

Fuchilla v. Layman, 210 N.J.Super. 574, 510 A.2d 281

tee we RD | eee eT Pore ers

Gold v. New York, 80 A.D.2d 138, 437 N.Y.S.2d 973 (Ist

tt. TRE) ccc vac cccecccscssvivicescancieuesccs

Hunter v. North Mason High School, 85 Wash.2d 810,

TIP FR IG cock ccd vacicscheeisenaeaestes

In re Martin, 100 A.D.2d 879, 473 N.Y.S.2d 1021 (2d

WE. TI v-66n 06s bdscctevcadesesecuvesentenss

Indiana Department of Public Welfare v. Clark, 478

N.E.2d 699 (Ind. Ct. App. 1985), cert. denied, 106

S.Gi FO ac ticktk Cneee dd db uncer anes

Jackson y. Police Department of New York, 119 A.D.2d

$51, 300 N. Y.S.2d 553 (2d Dept. 1906) .......0cc00.

Krieger v. New York, 118 Misc.2d 537, 461 N.Y.S.2d 171

ee | A ere ro err rer ee Pe

Luker v. Nelson, 341 F.Supp. 111 (N.D. Ill. 1972)......

Miller v. Boone County Hospital, ___. lowa.2d

SOG GE WE TIN 6 kc esccdedgavasetavickeus

Page

D ceeheet el

vil

Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d

709, 451 N.E.2d 456, cert. denied, 484 U.S. 1018, 104

es I i dis wild 06 Retaeaduedbdnciwsstéess

O’Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d

yk FE) ee are

O’Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d

a dla. doa eit nd is ka Se Shad ONS CsA

Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982) ..

Pauk v. Board of Trustees, 654 F.2d 856 (CA2 1981)....

Perrote v. Percy, 452 F.Supp. 604 (E.D. Wis. 1972).....

Phelps Steel, Inc. v. Glens Falls, 89 A.D.2d 652, 453

N.Y.S.2d 118 (3d Dept. 1982)..... Cr Ne ENE ee errs

Reich v. State Highway Dept., 386 Mich. 617, 194

a a a ee ee

Rosa v. Cantrell, 705 F.2d 1208 (10th Cir. 1982), cert. de-

nied, 464 U.S. 821, 104S.Ct. 85 (1983) .............

Spencer v. City of Seagoville, 700 S.W.2d 953 (Tex. Ct.

REE Rae ve hie ec hdnns dae dks dakaousthews

Stowe v. City of Elmira, 31 N.Y.2d 814, 339 N.Y.S.2d 463

Geeehah ss cau waecet ok dat hcbis abe Easetnuaes

Tanco v. N. Y.C. Health and Hospitals Corp., 84 A.D.2d

501, 443 N.Y.S.2d 66 (Ist Dept. 1981)..............

Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, cert. denied,

GESTLS. FGTS, SO Ske SOO CNOTN a ccc ivccwceces

Page

vill

Page

Williams v. Allen, 616 F.Supp. 653 (E.D.N.Y. 1985) .... 1]

Williams v. Horvath, 16 Cal.3d 834, 129 Cal. Reptr. 453,

548 P:2d 1125 (1976) ...... 2c cece e cree erences 12

Williams v. Posey, 475 F.Supp. 133 (M.D. Ga. 1979).... 12

Willis v. Reddin, 418 F.2d 702 (9th Cir. 1969) .......--. 12

Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938

CN Ss io cdasesak acces docbenee des cancers ss 16,17, 18

Periodicals

Annot., 59 A.L.R.3d 93, Sec. 2[a] (1974) ...-.----+-+> 13

Annot., 51 A.L.R.2d 1132 (1957). ...---- eee eee eee 13

423 SOUTH SALINA STREET, INC., APPELLANT

CITY OF SYRACUSE

METROPOLITAN DEVELOPMENT FOUNDATION

OF CENTRAL NEW YORK, INC.

AND AMLEA (NEW YORK), INC., APPELLEES

ON APPEAL FROM THE COURT OF APPEALS

OF THE STATE OF NEW YORK

JURISDICTIONAL STATEMENT

423 South Salina Street, Inc., Appellant, appeals from the fi-

nal judgment of the Court of Appeals of the State of New York,

holding that sections 50-e and 50-i of the N.Y. General Municipal

Law, as applied in this case, are not invalid as repugnant to 42

U.S.C. §1983, 42 U.S.C. §1988 and Article VI, ¢1. 2, the Suprem-

acy Clause of the United States Constitution.

OPINIONS BELOW

The opinion of the Court of Appeals of the State of New York,

which appears in the Appendix, Page A-1, infra, is reported at 68

NY2d 474,____N.E.2d___ (1986).

The opinion of the Appellate Division of the Supreme Court of

the State of New York, which appears in the Appendix, Page A-1

infra, is reported at 112 A.D.2d 745, 492 NYS2d 241 (Fourth De-

partment 1985).

The unpublished opinion of the Supreme Court of the State of

New York, Onondaga County, appears in the Appendix, Page A-

21, infra.

The opinion of the United States District Court for the North-

ern District of New York, which appears in the Appendix, Page

A-30 infra, is reported at 566 F.Supp 484 (N.D.N.Y. 1983).

The per curiam opinion of the United States Court of Appeals

for the Second Circuit, which appears in the Appendix, Page A-

49, infra, is reported at 724 F.2d 26 (CA2 1983).

JURISDICTION

The judgment of the Court of Appeals of the State of New

York dismissing Appellant’s Complaint was entered on Novem-

ber 20, 1986. A Notice of Appeal to this Court was timely filed in

the Court of Appeals of the State of New York on January 16,

1987.

This Appeal is being docketed in this Court within 90 days of

the entry of judgment below. The jurisdiction of this Court is in-

voked under 28 USC §1257(2).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

UNITED STATES CONSTITUTION

Article VI, clause 2

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made, or

which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

FEDERAL STATUTES

United States Code, title 42, § 1983 — Civil Action for Depriva-

tion of, Rights [The Civil Rights Act]

Every person who, under color of any statute, ordinance, reg-

ulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for

redress...

United States Code, title 42, § 1988 — Proceedings in Vindica-

tion of Civil Rights

The jurisdiction in civil and criminal matters conferred on the

district courts by the provisions of this Title, and of Title “CIVIL

RIGHTS,”. . . for the protection of all persons in the United

States in their civil rights, and for their vindication, shall be exer-

cised and enforced in conformity with the laws of the United

States, so far as such laws are suitable to carry the same into ef-

fect; but in all cases where they are not adapted to the object, or

are deficient in the provisions necessary to furnish suitable reme-

dies and punish offenses against law, the common law, as modi-

fied and changed by the constitution and statutes of the State

wherein the court having jurisdiction of such civil or criminal

cause is held, so far as the same is not inconsistent with the Con-

stitution and the laws of the United States, shall be extended to

and govern the said courts in the trial and disposition of the

cause,....

NEW YORK STATUTES

N.Y. General Municipal Law, Section 50-e Notice of Claim

1. When service required; time for service; upon whom serv-

ice required.

(a) In any case founded upon tort where a notice of claim is

required by law as a condition precedent to the commencement

of an action or special proceeding against a public corporation,

as defined in the general construction law, or any officer, ap-

pointee or employee thereof, the notice of claim shall comply

with and be served in accordance with the provisions of this sec-

tion within ninety days after the claim arises; except that in

wrongful death actions, the ninety days shall run from the ap-

pointment of a representative of the decedent’s estate.

(b) Service of the notice of claim upon an officer, appointee

or employee of a public corporation shall not be a condition

precedent to the commencement of an action or special proceed-

ing against such person. If an action or special proceeding is

commenced against such person, but not against the public cor-

poration, service of the notice of claim upon the public corpora-

tion shall be required only if the corporation has a statutory obli-

gation to indemnify such person under this chapter or any other

provision of law.

2. Form of notice; contents. The notice shall be in writing,

sworn to by or on behalf of the claimant, and shall set forth: (1)

the name and post-office address of each claimant, and of his at-

torney, if any; (2) the nature of the claim; (3) the time when, the

place where and the manner in which the claim arose; and (4) the

items of damage or injuries claimed to have been sustained so far

as then practicable but a notice with respect to a claim against a

municipal corporation other than a city with a population of one

million or more persons shall not state the amount of damages to

which the claimant deems himself entitled, provided, however,

that the municipal corporation, other than a city with a popula-

tion of one million or more persons, may at any time request a

supplemental claim setting forth the total damages to which the

claimant deems himself entitled. A supplemental claim shall be

provided by the claimant within fifteen days of the request. In the

event the supplemental demand is not served within fifteen days,

the court, on motion, may order that it be provided by the claim-

ant.

3. How served; when service by mail complete; defect in

manner of service; return of notice improperly served.

(a) The notice shall be served on the public corporation

against which the claim is made by delivering a copy thereof per-

sonally, or by registered or certified mail, to the person desig-

nated by law as one to whom a summons in an action in the su-

preme court issued against such corporation may be delivered, or

to an attorney regularly engaged in representing such public cor-

poration.

(b) Service by registered or certified mail shall be complete

upon deposit of the notice of claim, enclosed in a postpaid prop-

erly addressed wrapper, in a post office or official depository un-

der the exclusive care and custody of the United States post office

department within the state.

section, but in a manner not in compliance with the provisions of

this subdivision, the service shall be valid if the public corpora-

tion against which the claim is made demands that the claimant

or any other person interested in the claim be examined in regard

to it, or if the notice is actually received by a proper person within

the time specified by this section, and the public corporation fail

to return the notice, specifying the defect in the manner of serv-

ice, within thirty days after the notice is received.

(d) If the notice is served within the period specified by this

section and is returned for the reason and within the time pro-

vided in this subdivision, the claimant may serve a new notice ina

manner complying with the provisions of this subdivision within

ten days after the returned notice is received. If a new notice is so

served within that period, it shall be deemed timely served.

4. Requirements of section exclusive except as to conditions

precedent to liability for certain defects or snow or ice. No other

or further notice, no other or further service, filing or delivery of

the notice of claim, and no notice of intention to commence an

action or special proceeding, shall be required as a condition to

the commencement of an action or special proceeding for the en-

forcement of the claim; provided, however, that nothing herein

contained shall be deemed to dispense with the requirement of

notice of the defective, unsafe, dangerous or obstructed condi-

tion of any street, highway, bridge, culvert, sidewalk or cross-

walk, or of the existence of snow or ice thereon, where such no-

tice now is, or hereafter may be, required by law, as a condition

precedent to liability for damages or injuries to person or prop-

erty alleged to have been caused by such condition, and the fail-

ure or negligence to repair or remove the same after the receipt of

such notice.

5. Application for leave to serve a late notice.

Upon application, the court, in its discretion, may extend the

time to serve a notice of claim specified in paragraph (a) of subdi-

vision one. The extension shall not exceed the time limited for the

commencement of an action by the claimant against the public

corporation. In determining whether to grant the extension, the

court shall consider, in particular, whether the public corporation

or its attorney or its insurance carrier acquired actual knowledge

of the essential facts constituting the claim within the time speci-

fied in subdivision one or within a reasonable time thereafter.

The court shall also consider all other relevant facts and circum-

stances, including: whether the claimant was an infant, or men-

tally or physically incapacitated, or died before the time limited

for service of the notice of claim; whether the claimant failed to

serve a timely notice of claim by reason of his justifiable reliance

upon settlement representations made by an authorized repre-

sentative of the publit corporation or its insurance carrier;

whether the claimant in serving a notice of claim made an excus-

able error concerning the identity of the public corporation

against which the claim should be asserted; and whether the delay

in serving the notice of claim substantially prejudiced the public

corporation in maintaining its defense on the merits.

An application for leave to serve a late notice shall not be de-

nied on the ground that it was made after commencement of an

action, against the public corporation.

6. Mistake, omission, irregularity or defect. At any time af-

ter the service of a notice of claim and at any stage of an action or

special proceeding to which the provisions of this section are ap-

plicable, a mistake, omission, irregularity or defect made in good

faith in the notice of claim required to be served by this section,

not pertaining to the manner or time of service thereof, may be

corrected, supplied or disregarded, as the case may be, in the dis-

cretion of the court, provided it shall appear that the other party

was not prejudiced thereby.

7. Applications under this section. All applications under

this section shall be made to the supreme court or to the county

court: (a) in a county where the action may properly be brought

for trial, (b) if an action to enforce the claim has been com-

menced, in the county where the action is pending, or (c) in the

event that there is no motion term available in any of the counties

specified in clause (a) or (b) hereof, in any adjoining county.

Where the application is for leave to serve a late notice of claim, it

shall be accompanied by a copy of the proposed notice of claim.

8. Inapplicability of section. This section shall not apply to

claims arising under the provisions of the workmen’s compensa-

tion law, or the volunteer firemen’s benefit law, or to claims

against public corporations by their own infant wards.

N. Y. General Municipal Law, Section 50-i

Presentation of Tort Claims: Commencement of Actions

1. No action or special proceeding shall be prosecuted or

maintained against a city, county, town, village, fire district or

school district for personal injury, wrongful death or damage to

real or personal property alleged to have been sustained by rea-

son of the negligence or wrongful act of such city, county, town,

village, fire district or school district or of any officer, agent or

employee thereof, including volunteer firemen of any such city,

county, town, village, fire district or school district or any volun-

teer fireman whose services have been accepted pursuant to the

provisions of section two hundred nine-i of this chapter, unless,

(a) a notice of claim shall have been made and served upon the

city, county, town, village, fire district or school district in com-

pliance with section fifty-e of this chapter, (b) it shall appear by

and as an allegation in the complaint or moving papers that at

least thirty days have elapsed since the service of such notice and

that adjustment or payment thereof has been neglected or

refused, and (c) the action or special proceeding shall be com-

menced within one year and ninety days after the happening of

the event upon which the claim is based; except that wrongful

death actions shall be commenced within two years after the hap-

pening of the death.

2. This section shall be applicable notwithstanding any in-

consistent provisions of law, general, special or local, or any limi-

tation contained in the provisions of any city charter.

3. Nothing contained herein or in section fifty-h of this chap-

ter shall operate to extend the period limited by subdivision one

of this section for the commencement of an action or special pro-

ceeding.

Syracuse City Charter, Section 8-115 — Civil Actions Against the

City

The City shall not be liable in a civil action for damages or in-

juries to person or property or invasion of personal or property

rights of any name or nature whatsoever, whether casual or con-

tinuing, arising at law or in equity, alleged to have been caused or

sustained, in whole or in part, by or because of any omission of

duty, wrongful act, fault, neglect, misfeasance or negligence on

the part of the City, or any of its agents, officers or employees

unless a notice of claim shall have been made and served in com-

pliance with section 50-e of the General Municipal Law, nor un-

less an action shall be commenced thereon within one year and

ninety days after the happening of such accident or injury or the

occurrence of such act, omission, fault or neglect; but no action

shall be commenced to recover upon or enforce any such claim

against the City until the expiration of thirty days after the service

of said notice. Nothing herein contained, however, shail be held

to revive any claim or cause of action now barred by any existing

requirement or statute of limitations nor to waive any existing

limitation now applicable to any claim or cause of action against

the City.

STATEMENT OF THE CASE AND HOW

THE FEDERAL QUESTION WAS RAISED

Appellant 423 South Salina Street, Inc., which owned real

property (“Property”) in downtown Syracuse, commenced this

action to recover damages resulting from the defendant City’s

gross misuse of its taxing power. Appellant alleged that the City,

pursuant to a municipal policy of continually overtaxing down-

town properties, repeatedly placed illegal assessments on the

Property, so burdensome as to completely destroy the value of

the Property. After so doing, the City took a tax deed to the Prop-

erty in consequence of Appellant’s inability to pay the illegal

taxes and thereby achieved its objective of acquiring the Property

without condemnation and without just compensation. Relying

on 42 U.S.C. §1983, Appellant asserted violations, inter alia, of

the due process clause and for a taking without just compensa-

tion under the Fourteenth Amendment.

An earlier action seeking the same relief which had been

brought by Appellant in a federal court was dismissed on the

grounds of comity and the Tax Injunction Act, 566 F.Supp. 484

(N.D.N.Y. 1983). The Court of Appeals for the Second Circuit

affirmed the dismissal but noted: “According to the New York

courts, the City of Syracuse has engaged in ‘an aggravated pat-

tern of misuse of the taxing power’ by overassessing property

year after year despite court rulings that such overassessments

were unlawful.” 724 F.2d 26 (CA2 1983). The Second Circuit ex-

pressed confidence that the New York couris provided adequate

state law remedies for the problem. Jd. at 27.

Appellant then commenced the present, essentially identical,

action in the Supreme Court of the State of New York, Onondaga

County. Defendants moved to dismiss on the grounds that Ap-

pellant lacked standing, that the complaint failed to state a cause

of action, that the action was barred by a one year and 90 day

statute of limitations and by Appellant’s failure to file a “‘notice

of claim” within ninety days of the time the claim arose, as re-

quired by New York General Municipal Law sections 50-e and 50-

i(McKinney 1986). Over Appellant’s objections that the notice of

claim requirement could not be validly applied to an action aris-

ing under 42 U.S.C. §1983, the complaint was dismissed on this

and other grounds in an unreported opinion, see Appendix at A-

22.

On appeal to the Supreme Court, Appellate Division, Fourth

Department, Appellant urged that the dismissal, insofar as based

on the failure to file a notice of claim, was repugnant to federal

law. The Appellate Division affirmed on other grounds without

reaching the notice of claim issue, 112 A.D.2d 745, 492 N.Y.S.2d

241 (4th Dept. 1985), See Appendix at A-21.

On appeal, the New York Court of Appeals agreed with Appel-

lant that the action stated a cause of action, that Appellant had

standing and that the action was timely under New York’s statute

of limitations. However, discounting Appellant’s objections

sounding in federal law, the Court held that the claim was barred

by Appellant’s failure to serve a “notice of claim” within ninety

days of the accrual of the claim or to obtain judicial discretionary

relief from that time limit. See Appendix at A-1. The Court of

Appeals reasoned that:

The applicability to a section 1983 action of a state notice of

claim provision, involving as it does construction of 42

U.S.C. section 1988, is a matter of federal law, but when, as

here, there is neither a decision of the Supreme Court nor

uniformity in the decisions of the lower federal courts, a

state court required to interpret a federal statute is not

bound to follow the decision of the federal courts or pre-

cluded from exercising its own judgment... (citation

omitted). See Appendix at A-13.

* * *

In light of the foregoing analysis and bearing in mind that

the Supreme Court has yet to consider the question, we con-

clude that General Municipal Law section 50-1 is applicable

to this action. See Appendix at A-19.

The Court also refused to apply its judicially crafted “‘public

interest” exception to the notice of claim requirement because

that exception applies only to actions seeking class relief (Appen-

dix, p. A-19).

THE QUESTIONS ARE SUBSTANTIAL

I. The Many Conflicting Decisions On The Point At Issue Call

For Resolution By This Court

A substantial majority of the courts which have addressed the

issue have held that state and local notice of claim requirements

may not be applied to frustrate actions brought under 42 U.S.C.

§1983. Among these are the Court of Appeals for the Second Cir-

cuit. Brandon v. Board of Education, 635 F.2d 971, 973-974, n. 2

(CA2 1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970 (1981);

Williams v. Allen, 616 F.Supp. 653, 656-659 (E.D.N.Y. 1985);

but see Cardo v. Lakeland School District, 592 F.Supp. 765, 772-

773 (S.D.N.Y. 1984) (contra). Thus, a New Yorker with a federal

civil rights claim either will or will not have to serve a timely no-

tice of claim, depending on whether the action is brought in state

or federal court. (It would seem that New York litigants are en-

couraged to add to the already burdened federal district court

dockets.)

Other courts holding that section 1983 actions may not be sub-

jected to notice of claim rules include the Court of Appeals for

the District of Columbia Circuit, which thoroughly discussed the

role of 42 U.S.C. §1988 and rejected the application of a District

of Columbia rule on the ground that there was no gap in federal

law which allowed the application of the local notice of claim re-

quirement, see Brown v. United States, 742 F.2d 1498, 1503-1510

(CADC 1984) (en banc), cert. denied, 471 U.S. 1073, 105 S.Ct.

2153 (1985) (Chief Justice Burger and Justice White dissenting

from the denial of certiorari).

See also, to the same effect, Willis v. Reddin, 418 F.2d 702,

704-705 (9th Cir. 1969); Rosa v. Cantrell, 705 F.2d 1208, 1221

(10th Cir. 1982), cert. denied, 464 U.S. 821, 104 S.Ct. 85 (1983);

Williams v. Posey, 475 F.Supp. 133 (M.D. Ga. 1979); Perrote v.

Percy, 452 F.Supp. 604 (E.D. Wis. 1972); Luker v. Nelson, 341

F.Supp. 111, 115-119 (N.D. Ill. 1972); Williams v. Horvath, 16

Cal.3d 834, 129 Cal. Reptr. 453, 548 P.2d 1125 (1976); Overman

v. Klein, 103 Idaho 795, 799, 654 P.2d 888, 892 (1982); Doe v.

Ellis, 103 Wis.2d 581, 309 N.W.2d 375 (1981); Fuchilla v. Lay-

man, 210 N.J.Super. 574, 510 A.2d 281 (N.J.Super. A.D. 1936);

Spencer v. City of Seagoville, 700 S.W.2d 953, 955 (Tex. Ct. App.

1985). Several state courts have found short notice of claim pro-

visions to be so obnoxious that they have held them to be uncon-

stitutional in all cases — not only those involving civil rights.

Miller v. Boone County Hospital, _lowa.2d___., 394

N.W.2d 776 (1986); O’Neil v. City of Parkersburg, 160 W.Va.

694, 237 S.E.2d 504 (1977); Hunter v. North Mason High School,

85 Wash.2d 810, 539 P.2d 845 (1975); Turner v. Staggs, 89 Nev.

230, 510 P.2d 879, cert. denied, 414 U.S. 1079, 94 S.Ct. 598

(1973); Reich v. State Highway Department, 386 Mich. 617, 194

N.W.2d 700 (1972).

Contrariwise, section 1983 claims have been held subject to lo-

cal notice of claim requirements in Deary v. Three Un-Named

Police. Officers, 746 F.2d 185, 193-198, 199 (Higginbotham, J.,

dissenting and concurring) (CA3 1984) and in Indiana Depart-

ment of Public Welfare v. Clark, 478 N.E.2d 699, 701-702 (Ind.

Ct. App. 1985), cert. denied, 106 S.Ct. 2893 (1986). See also Mills

v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451

N.E.2d 456, cert. denied, 484 U.S. 1018, 104 S.Ct. 551 (1983),

holding that plaintiff’s failure to comply with another of New

York’s notice of claim rules barred her employment discrimina-

tion claim brought under 42 U.S.C. section 1981.

According to the Court below, it was the very lack of uniform-

ity, coupled with an absence of a definitive ruling from this

Court, that led it to exercise its “own judgment” and resolve the

conflict in favor of state law. See Appendix at A-13, A-19.

II. The Holding Below Imposes Substantial Burdens On The

Assertion of Federal Rights

The question of whether states and their subdivisions may law-

fully require a notice of claim to be filed within a short time

frame after the occurrence of a civil rights violation as a condi-

tion precedent to the maintenance of an action brought pursuant

to 42 U.S.C. §1983 is important because such requirements are

both common and burdensome.

“Statutes, ordinances, and municipal charters frequently re-

quire that a notice of tort claim be given a local governmental

unit before a suit for damages may be brought.” Annot., 59

A.L.R.3d 93, 97 Sec. 2[a] (1974). Such statutes are found in

“most jurisdictions,’ Annot., 51 A.L.R.2d 1132 (1957). They

typically require service of the notice of claim within a short time

period, see examples collected in Annot., 59 A.L.R.3d 93, 101-

126, including many using a ninety day period and some as short

as sixty days. Moreover, such statutes often require substantial

detail in the notice of claim, including the time, place and cause

of the accident as well as a description of the injury, /d. at 101.

The New York requirements at issue here affect all actions

against municipalities, school districts and like entities, for per-

sonal injury, wrongful death or property damage when the claim

is based on the “negligence or wrongful act” of such an entity or

its employees. New York General Municipal Law §50-i. Such

actions may not be maintained unless the claimant first serves a

notice of claim on the entity “in compliance with” with General

Municipal Law §50-e and §50-1.

Section 50-e (1)(a) requires that the notice be served “within

ninety days after the claim arises.” The notice rust be in writing,

be sworn to, and include the following information: the name

and address of each claimant “‘and of his attorney, if any”’; “the

nature of the claim”; “‘the time when, the place where and the

manner in which the claim arose”’; and (depending on the nature

of the defendant) the items of damage sustained, id., section 50-

e(2).

New York courts often apply demanding standards to the form

of notice — dismissals are common. See, e.g. O’Brien v. City of

Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 689, 429

N.E.2d 1158 (1981); Jackson v. Police Department of New York,

119 A.D.2d 551, 500 N.Y.S.2d 553 (2d Dept. 1986); Caselli v.

City of New York, 105 A.D.2d 251, 483 N.Y.S.2d 401 (2d Dept.

1984); Faubert v. New York, 90 A.D.2d 509, 455 N.Y.S.2d 24 (2d

Dept. 1982); Phelps Steel, Inc. v. Glens Falls, 89 A.D.2d 652, 453

N.Y.S.2d 118 (3d Dept. 1982). See also Gold v. New York, 80

A.D.2d 138, 437 N.Y.S.2d 973 (1st Dept. 1981) (action dismissed

because notice served on City rather than on its board of educa-

tion); Krieger v. New York, 118 Misc.2d 537, 461 N.Y.S.2d 171

(Sup. Ct. 1982) (action dismissed because notice served by first

class mail rather than certified mail).

The ninety day time limit is not absolute. Section 50-e (5) al-

lows acourt “in its discretion” to extend it up to the time allowed

by the otherwise applicable statute of limitations for commenc-

ing an action. In exercising its discretion, the court is io consider

such factors as whether the defendant had notice of the facts con-

stituting claim through some other means, whether the claimant

died, or was an infant, or was physically or mentally incapaci-

tated and whether the defendant was prejudiced by the delay in

the service of the claim. Despite the liberal sounding list of fac-

tors, motions to be excused from the consequences of lateness are

often denied, particularly when the claimant is not an infant.

“On an application for permission to file a late notice of claim

against a government authority, it has been consistently held that

the party seeking relief must give a satisfactory explanation for

the delay.” Bullard v. City of New York, 118 A.D.2d 447, 448, 499

N.Y.S.2d 880, 881 (Ist Dept. 1986) (concurring opinion of Justice

Kassal). Even a showing that the plaintiff is unable to speak or

understand English does not excuse late service of the notice. See

Figueroa v. New York, 92 A.D.2d 908, 460 N.Y.S.2d 199 (2d

Dept. 1983) and Tanco v. N. Y.C. Health and Hospitals Corp., 84

A.D.2d 501, 443 N.Y.S.2d 66 (Ist Dept. 1981). For other appel-

late decisions refusing to permit late service see, e.g., Jn re Mar-

tin, 100 A.D.2d 879, 473 N.Y.S.2d 1021 (2d Dept. 1984); Baehre

v. County of Erie, 94 A.D.2d 943, 464 N.Y.S.2d 69 (4th Dept.

1983), Burns v. City of New York, 21 A.D.2d 767 (ist Dept.

1964).

Moreover, notice of claim provisions exist in countless city

charters which frequently become state law (by virtue of munici-

pal home rule laws or by specific adoption by state statute as did

the charter of the City of Syracuse.) Although the Court of Ap-

peals did not “find it necessary to decide whether the [Syracuse]

charter’s broader coverage makes it inconsistent with §50-i. . ””

(Appendix at A-14, fn.5), the “broader coverage” of a city char-

ter could conceivably prescribe a 30 or 60 day period rather than

a 90 day period, and, as is the case with respect to Syracuse’s

charter, need not confer discretion on a court to excuse a late fil-

ing.

The burden imposed on a civil rights grievant by the New York

notice of claim rules and their short time limit is substantial. The

detailed requirements of the notice of claim mean that as a practi-

cal matter the assistance of counsel is required. Counsel must

fully investigate and carefully draft the document. It is difficult

enough for the victim of an ordinary municipal tort to comply.

Laymen are unlikely to know of the requirement and may fail to

consult an attorney in time. These problems are compounded

when constitutional rights are implicated, as the relevant law is

often less clear and the facts not as readily available. As this

Court has noted “. . .the section 1983 remedy encompasses a

broad range of potential tort analogies, from injuries to property

to infringements of individual liberty”? Wilson v. Garcia, 471

U.S. 261, 277, 105 S.Ct. 1938, 1948 (1985). Knowledgeable coun-

sel for civil rights matters is less easily found, especially outside

the major municipalities.

Ill. Federal Law Does Not Permit Civil Rights Claims To Be So

Burdened

The holding below violates the first principle of 42 U.S.C

§1988, because that statute by its terms directs the courts to apply

state laws only where federal laws are “‘not adapted to the object

or are deficient in the provisions necessary to furnish suitable

remedies. . 2’ Thus, statutes of limitation must be borrowed into

federal law because they are “fundamental to a well-ordered ju-

dicial system.” Board of Regents v. Tomanio, 446 U.S. 478, 487,

100 S.Ct. 1790, 1796 (1980). This cannot be said of notice of

claim requirements, as these are almost never encountered except

when the defendant is a governmental entity. The legal system

functions quite well in their absence. Hence, there is neither a

need nor a justification for borrowing a notice of claim rule into

federal civil rights law. See discussion in Brown vy. United States,

742 F.2d 1498, 1506 (CADC 1984) (en banc), cert. denied, 471

U.S. 1073, 105 S.Ct. 2153 (1985) (Chief Justice Burger and Jus-

tice White dissenting from denial of certiorari).

Even assuming, arguendo, that there is a notice of claim “‘gap”’

in section 1983 cases, section 1988 would not permit borrowing

of arequirement which involves a 90-day cut-off period. To do so

would violate the second principle of 42 U.S.C. §1988 under

which “courts are to apply state law only if it is not ‘inconsistent

with the Constitution and laws of the United States.” ” Burnett v.

Grattan, 468 U.S. 42, 48, 104 S.Ct 2924, 2929 (1984). In the

present case, as in Burnett v. Grattan, supra, the application of a

state rule which imposes a short time limit on a section 1983

claimant is inappropriate because it “fails to take into account

the practicalities that are involved in litigating federal civil rights

claims and policies that are analogous to the goals of the Civil

Rights Acts.” Burnett v. Grattan, 468 U.S. at 50, 104 S.Ct. at

2930.

In Burnett, the Court held it unrealistic to expect a civil rights

plaintiff to commence an action within a six month statute of lim-

itations. The burdens of a claimant who would satisfy New York

General Municipal Law §§50-e and 50-i are also substantial (see

supra, pp. 3-8). Yet under New York law, he must meet them in

ninety (90) days or persuade a state judge to relieve him of the

obligation.

The ruling below also burdens the civil rights claimant by un-

dermining the uniformity principle of Wilson v. Garcia, 471 U.S.

261, 105 S.Ct. 1938 (1985). That case requires the application in

each state of “‘the one most appropriate statute of limitations for

all section 1983 claims.” Jd., 471 U.S. at 275, 105 S.Ct. at 1947.

While the New York notice of claim requirement is not a statute

of limitations (indeed, it imposes an onerous additional require-

ment to the latter’s admonition that an action be commenced

within three years), it does impose a limitation of time on pain of

dismissal. A claimant in New York (and in the many other states

having such rules) must therefore consult at least two sources of

law to determine the time in which he must take legal action when

his civil rights claim lies against a public entity or its employees.

The “uniformity of time limit principle” of Wilson v. Garcia is

further confused in New York by three additional factors trace-

able to the decision below. First, under the judicially crafted and

vaguely defined “‘public interest exception” to the New York

rules, class action 1983 claimants need not serve a notice of

claim, see Appendix at A-19. Second, the New York General Mu-

nicipal Law is not the only statute requiring a notice of claim.

Public entities not within its ambit may well be covered by a simi-

lar statute, or even an ordinance, see, e.g., N.Y. Education Law

§3813 (1) (McKinney 1981); N.Y. Public Authorities Law

§§1212, 1276 (McKinney 1982) id., 1691 (McKinney 1981); N.Y.

Public Housing Law §157 (McKinney Supp. 1987); Syracuse City

Charter section 8-115. Third, a section 1983 claimant who com-

mences his action in a federal district court in New York need not

file a notice of claim (see discussion in Point I, supra).

If for any reason a civil rights claimant fails to meet the ninety

day limit for serving the notice of claim, the plaintiff is subject to

the discretionary justice of any of hundreds of state court judges

— never the United States District Court — even where the fed-

eral court may be the intended forum. Further, the Court of Ap-

peals has made it clear that it will not review the exercise of discre-

tion by New York’s four Appellate Divisions Stowe v. City of

Elmira, 31 N.Y.2d 814, 339 N.Y.S.2d 463 (1972).

Thus, the Congressional “‘purpose to create an effective rem-

edy for the enforcement of federal civil rights is obstructed by

uncertainty. . .for scarce resources must be dissipated by useless

litigation on collateral matters.’ Wilson v. Garcia, 471 U.S. at

275, 105 S.Ct. at 1947.

As in Burnett v. Grattan, supra, the goal of the New York no-

tice of claim statutes — early notice to municipal officials of legal

claims — is divergent from that of the Civil Rights Acts. What-

ever the utility of such notice with respect to traditional tort

claims, it cannot be permitted to frustrate the goals of section

1983, which are the “compensation of persons whose civil rights

have been violated, and prevention of the abuse of state power.”

Burnett v. Grattan, 468 U.S. at 53, 104 S.Ct. at 2931 (citations

omitted). See also City of Riverside v. California, 106S.Ct. 2686,

2694 (1986); “[W]e reject the notion that a civil rights action for

damages constitutes nothing more than a private tort suit bene-

fiting only the individual plaintiffs whose rights were violated.”

We quote from this Court’s opinion in Burnett v. Grattan, su-

pra, which, in turn, quoted from che opinion of the Court of Ap-

peals for the Second Circuit in Pauk v. Board of Trustees, 654

F.2d 856, 862 (CA2 1981):

“[iJt would be anomalous for a federal court to apply a state

policy restricting remedies against public officials to a fed-

eral statute that is designed to augment remedies against

those officials, especially a federal statute that affords rem-

edies for the protection of constitutional rights.”

Multiplying the unpredictability of application to serve late

notice of claim by the heterogeneity of the many notice of claim

Statutes around the country produces a maze which is constitu-

tionally unsuitable for passage by a party, often without funds or

counsel, seeking to redress violations of the Civil Rights Act.

Quite simply, the New York Court of Appeals decision is bad

precedent with mischievous, indeed ominous implications for

civil rights claims and constitutional supremacy in our federal

system.

CONCLUSION

For the foregoing reasons, this Court should note probable ju-

risdiction of this appeal. If, however, it is concluded that proba-

ble jurisdiction is wanting, Appellant respectfully requests this

Court to consider this Jurisdictional statement as a Petition for

Certiorari and to grant the Petition for the reasons stated herein.

Respectfully submitted,

MOUSAW, VIGDOR, REEVES,

HEILBRONNER & KROLL

(James S. Grossman*,

Justin L. Vigdor)

600 First Federal Plaza

Rochester, New York 14614

Telephone: (716) 325-2500

Oscar G. Chase

40 Washington Street South

New York, New York 10012

Telephone: (212) 598-2574

*Counsel of Record

APPENDIX

A-1

Opinion of Court of Appeals of State of New York

State of New York

Court of Appeals

4 No. 399

423 South Salina Street, Inc.,

Appellant,

City of Syracuse, &c., et al.,

Respondents.

OPINION

This opinion is uncorrected and subject to revision before publi-

cation in the New York Reports.

(399) Justin L. Vigdor, Rochester, for appellant.

C. Frank Harrigan, Syracuse Corporation Counsel (James L.

Gelormini of counsel) for respondent City.

William L. Allen, Jr., Syracuse, for respondent Metropolitan

Development & Amlea.

MEYER, J.

Although plaintiff, 423 South Salina Street, Inc., lacked

standing necessary to enjoin the City of Syracuse from transfer-

ring real property taken by the City for nonpayment of taxes, ii

has standing to maintain an action pursuant to the Federal Civil

Rights Act of 1871 (42 USC §1983) for damages resulting from

the City’s alleged misuse of its taxing power. Moreover, its com-

plaint states a cause of action under that section which, being

governed as to limitations by CPLR 214(5), was timely brought.

The action is, however, barred by plaintiff’s failure to serve a no-

tice of claim as required by General Municipal Law §50-i, which

failure likewise barred any claim based upon violation of the New

A-2

Opinion of Court of Appeals of State of New York

York State Constitution. The order of the Appellate Division

should, therefore, be affirmed, with cosis.

In September 1976, plaintiff purchased from the University of

Rochester property which the University had leased to the W.T.

Grant Company in 1944. Grant constructed a five-story building

on the property which it then sold to and leased back from the

University. The lease required Grant to pay an annual rent of

$77,322.32 and all taxes, utility charges, insurance and mainte-

nance costs.

The City assessed the property for each year since 1964 at

$1,135,700. Assessment review proceedings for the years 1971-

1976 were begun, but Grant’s tenancy ended in 1976 when it went

bankrupt and vacated the premises.

The University then sold the property to plaintiff for $25,000,

plaintiff agreeing to assume liability for the unpaid 1976 taxes,

penalties and interest on the property, which brought the total

consideration to $175,774.32. Plaintiff, however, neither paid

those taxes, nor the taxes for ensuing years 1977-1979, nor when

tax sales were conducted for the 1976-1978 arrearages did it seek

to redeem the property within a year after the sale as permitted by

Real Property Tax Law §1010. On April 9, 1979, the City of Syra-

cuse took a tax deed to the property, but in the following month

plaintiff obtained a preliminary injunction restraining the City

from transferring title to the property until completion of the

1976-1979 assessment review proceeding.

That proceeding ended on April 2, 1981 with our affirmance of

the Appellate Division’s modification of the property assess-

ments for the years 1971-1976, in an opinion which noted the

“aggravated pattern of misuse of the taxing power” by the City

A-3

Opinion of Court of Appeals of State of New York

(52 NY2d 496, 518). The order affirming the grant of the prelimi-

nary injunction was, however, reversed. The opinion held that

there is equitable power to enjoin collection of a tax when there is

a clear showing of intentional overassessment tantamyunt to

fraud and the taxpayer was without relief from the imminent

deprivation of his property. It concluded, however, that while

Grant may have been entitled to such an injunction, plaintiff, by

reason Of its failure to pay the 1976-1979 taxes, lacked “equitable

standing to assert the aggravated pattern of tax abuse to which its

predecessor in interest was subject as the basis for injunctive re-

lief” (52 NY2d at 518).

On April 2, 1982 plaintiff commenced a §1983 action in federal

court as to which a lis pendens was recorded. That action was,

however, dismissed on grounds of comity (566 Fed Supp 484) and

that dismissal was affirmed by the Second Circuit (724 F2d 26) on

December 14, 1983. Plaintiff then commenced the present action

on an essentially identical complaint, well within the six-month

period allowed by CPLR 205(a) (Gross v Newburger Loeb & Co.,

85 AD2d 709; 1 Weinstein-Korn-Miller, New York Civil Practice,

4205.09) and promptly thereafter recorded a lis pendens as to it.

On November 22, 1983 the City conveyed the property to defend-

ant Metropolitan Development Foundation and on December

19, 1983 the Foundation conveyed the property to defendant

Amlea (New York) Inc.

All three defendants moved to dismiss the complaint, the City

upon the grounds that the plaintiff lacked standing, that the com-

plaint failed to state a cause of action and that the action was

barred by plaintiff’s failure to serve a notice of claim within the

applicable statute of limitations; defendants Metropolitan and

Amlea on the grounds that the complaint stated no cause of

action against them and that any action was barred by limita-

tions. Special Term dismissed the complaint holding the action

A-4

Opinion of Court of Appeals of State of New York

barred as to the City by plaintiff’s failure to comply with the no-

tice of claim provisions of the City Charter and by the one-year-

90-day limitation provision of General Municipal Law §50-

i(1)(c), and as to defendants Foundation and Amlea that no

cause of action was stated against them. On appeal to the Appel-

late Division that court affirmed, concluding, in light of our

prior holding in W. 7: Grant Co. v Srogi (52 NY2d at 518, supra),

that plaintiff “‘was not the one subjected to this unlawful con-

duct,” that the City had not violated plaintiff’s civil rights and

that, therefore, the complaint failed to state a cause of action

(112 AD2d 745). Plaintiff’s appeal to this Court was dismissed on

the ground that no substantial constitutional question was di-

rectly involved (66 NY2d 914), but its motion for leave to appeal,

thereafter made, was granted (67 NY2d 605).

Before us plaintiff argues that it has standing to maintain the

action, that the complaint states a cause of action, that the appli-

cable statute of limitations is three years, that the notice of claim

provision is inapplicable but in any event was substantially com-

plied with, and that the courts below abused their discretion in

failing to grant it leave to replead its state constitutional claims.

We conclude that plaintiff has standing to seek damages from the

City, but not against the Foundation and Amlea, that the com-

plaint states a cause of action to which the three-year statute ap-

plies, but that both the present action and any action that could

be pleaded under the State Constitution are barred by plaintiff’s

failure to give the required notice of claim.' We, therefore, af-

firm.

' Although our notice of claim holding is a sufficient basis for affirmance and

we would, therefore, normally find it unnecessary to consider the other

grounds, we deem it appropriate to do so in the present case because they are

directly raised by the motions to dismiss.

A-5

Opinion of Court of Appeals of State of New York

The Appellate Division erred in extending our holding in W. 7.

Grant Co. v Srogi, supra, beyond the facts on which it was based

(see, JA. Preston Corp. v_ Fabrication Enterprises,

NY2d____ [decided herewith]). As the language quoted

above from the Grant opinion makes clear, we held only that

plaintiff “lacks equitable standing to assert the aggravated pat-

tern of tax abuse to which its predecessor in interest was subject

as the basis for injunctive relief.’ But as the discussion preceding

that conclusion evidences, the factual basis of the claimed abuse

of the taxing power set forth in the papers before the Court was

“quite compelling” (52 NY2d at 517) and might have been suffic-

ient to justify restraining the City from transferring the Grant

property, notwithstanding that restraints on enforcement of rev-

enue collection are, and must be if government is to continue to

function, the exception rather than the rule. Grant of the injunc-

tion was reversed not alone because plaintiff's predecessor,

rather than plaintiff, had been “subjected to this unlawful con-

duct” (52 NY2d at 518), but also because plaintiff, having pur-

chased the property with the understanding that it would assume

all tax liability then owing, had never paid the taxes. Thus, it was

not a lack of likelihood of success on the merits, but a balancing

of the equities, which favored the City rather than plaintiff, that

was the basis for the conclusion that plaintiff was without stand-

ing to obtain equitable relief.

It was not, however, a holding that plaintiff had no standing to

sue for damages or had not sufficiently stated a cause of action

for damages. Notwithstanding CPLR 103(a) and its predecessor

provisions, “the distinctions between law and equity * * * are

still very much with us” (McLaughlin, Practice Commentary,

McKinney’s Cons Laws of NY, Book 7B, CPLR 1 to 300, p 14). A

§1983 plaintiff who, because he has not demonstrated irrepara-

A-6

Opinion of Court of Appeals of State of New York

ble injury is not entitled to injunctive relief, is not thereby barred

from recovery of damages in the action (City of Los Angeles v

Lyons, 461 US 95, 111-113). Likewise, as a matter of state proce-

dure we have long recognized that “‘a court of equity * * * may

order a sum of money to be paid to the plaintiff and give him a

personal judgment therefor when that form of relief becomes

necessary in order to prevent a failure of justice and when it is for

any reason impracticable to grant the specific relief demanded”

(Doyle v Allstate Ins. Co., 1 N¥2d 439, 443; Ungewitter v Toch,

26 NY2d 687, affg 31 AD2d 583; Kaminsky v Kahn, 23 AD2d

231, 237).

Thus, plaintiff has standing to maintain its cause of action for

damages. It does not, however, have standing to obtain equitable

relief in the form of vacatur of the deed taken by the City, of the

City’s deed to the Foundation and of the Foundation’s deed to

Amlea. We need not consider whether the public policy upon

which the lis pendens provisions of CPLR 6501 is based is over-

borne by the policy discussed in W.T? Grant Co. v Srogi, supra,

against impeding the right of the municipality to collect reve-

nues, or the res judicata effect of our reversal of the preliminary

injunction granted in the prior assessment review proceeding (cf.

J.A. Preston Corp. v Fabrication Enterprises, supra), for plain-

tiff has offered no explanation for its failure to pay the taxes

found due in that prior proceeding. Its failure to pay those taxes

was at least in part a predicate for the 1979 tax deed. Moreover,

plaintiff has made no offer in this proceeding to pay taxes due on

the property for any of the open years, notwithstanding the long-

standing rule that it is a condition precedent to a plaintiff's ob-

taining equitable relief that the plaintiff himself do equity (Dug-

gan v Platz, 263 NY 505, 507).

Because plaintiti is without standing to seek vacatur of the

deed, dismissal of so much of the complaint as sought that relief

A-7

Opinion of Court of Appeals of State of New York

was proper, and, defendants Foundation and Amlea having been

joined as defendants only with respect to that relief, dismissal of

the complaint as to them was also correct.

There remains for discussion whether plaintiff's cause of

action against the City for damages is sufficient and, if so,

whether it is barred either by limitations or by the failure to file a

notice of claim. We conclude that a cause of action is stated and

that the action was timely brought, but that the failure to file a

notice of claim is fatal to the action.

The City’s insistence that no cause of action is stated is predi-

cated on its contentions that plaintiff seeks to recover for injury

to others, that the exercise of the taxing power cannot constitute

a taking, and that plaintiff has an adequate state remedy. As to

the first, plaintiff responds that it acquired from the University

not only the property but all of the University’s rights incident

thereto, including its interest in pending tax proceedings. While

plaintiff may be able to prove at trial that it in fact succeeded to

the University’s rights with respect to constitutional violations

antedating September 1976, nothing in the record establishes its

acquisition of more than the property itself. That does not con-

clude the matter, however, for plaintiff was directly involved as

the taxpayer as to the 1976-1980 assessments, during which per-

iod the pattern of overassessment in each year, notwithstanding

prior decisions reducing by some two-thirds the prior assess-

ments imposed, continued, culminating in the City’s deeding the

property to itself in 1979.

Thus the gravamen of plaintiff's complaint is not just that the

taxes imposed were excessive but that it has been the victim of

“an aggravated pattern of misuse of the taxing power,” begun

against its predecessor and continued as to it, which sought to

cea,

A-8

Opinion of Court of Appeals of State of New York

require it to pay excessive taxes on the property involved despite

rulings that prior assessments “were unlawful by reason of over-

valuation” (52 NY2d at 518). That such an abuse of the taxing

power may constitute a denial of due process was declared long

ago by this Court (Gordon v Cornes, 47 NY 608, 612). And that

the facts alleged in the complaint sufficiently describe an abuse

tantamount to constitutional violation appears from the descrip-

tion of the “pattern of misuse,” which operated against the Uni-

versity prior to 1976 and continued after plaintiff's acquisition of

the property in 1976 to operate against it, set forth in the Appel-

late Division’s Grant opinion (71 AD2d at 474):

It is not difficult to sort out the considerations at work

here. The city’s constitutional debt limit and the amount of

important financial aid it receives are computed by the total

assessed value of the real property in the city. An important

segment of any municipal assessment roll is the commercial

properties of its downtown shopping area. These properties

not only contribute high values to the assessment roll, but

downtown property owners represent a relatively innocu-

ous part of the city constituency. Thus, there is much to win

and little to risk by keeping downtown assessments high.

Although plaintiff did not pay the taxes for 1976 and thereafter,

its complaint alleges that it was unable to do so because “all po-

tential lessees and purchasers ultimately refused to rent or buy

because of the onerous and unlawfully excessive taxes.” A §1983

cause of action for damages resulting from the City’s alleged vio-

lation of plaintiff’s constitutional rights is sufficiently stated.

Moreover, the fact that plaintiff may have a state remedy in in-

verse condemnation (see, Matter of Keystone Assoc. v Moerdler,

19 NY2d 78; Ferguson v Village of Hamburg, 272 NY 234; Gor- |

don v Cornes, supra) does not require dismissal of its §1983 cause

of action. The Supreme Court “has not interpreted §1983 to re- |

quire a litigant to pursue state judicial remedies prior to com- |

A-9

Opinion of Court of Appeals of State of New York

mencing an action under this section” (Board of Regents v Toma-

nio, 446 US 478, 491). The City’s argument to the contrary is

predicated upon cases such as Hudson v Palmer (468 US 517) and

Collier v City of Springdale (733 F2d 1311, cert denied 469 US

857) considering whether, in light of Parratt v Taylor (451 US

527),’ a due process violation could be found to exist if the state

provides a meaningful post-deprivation remedy. But, as the Sixth

Circuit held in Wilkerson v Johnson (699 F2d 325, 329), to apply

Parratt outside the prisoners’ rights context is inconsistent with

Supreme Court decisions, beginning with Monroe v Pape (365

US 167),’ holding that a §1983 plaintiff is not barred by the avail-

ability of a state court remedy. In any event, Hudson and Parratt

were concerned with whether there had been a due process viola-

tion when 2 post-deprivation hearing had been provided, not

whether, as is here alleged, a municipality may, having provided

due process for the determination of a tax assessment, obtain for

itself a taxpayer’s property by repeatedly and for an impermissi-

ble purpose refusing to abide by the assessment determination,

with the result that the property can neither be rented nor sold

and is eventually taken by the City for nonpayment of the exces-

sive taxes thus imposed. The due process violation for which

plaintiff seeks recompense is, thus, not related to determination

of the tax assessment, but to the City’s refusal to abide by the de-

termination made in plaintiff’s favor. In that context, “the rem-

edy provided in §1983 [is] independently enforceable whether or

not it duplicates a parallel state remedy” (Wilson v Garcia,

US ; , 1055 Ct 1938, 1949).

‘ Overruled on an unrelated issue Daniels v Williams (__US__, 54 USLW

4090).

' Overruled on an unrelated issue Monell v New York City Dept. of Social Serv-

ices (436 US 658, 663).

A-10

Opinion of Court of Appeals of State of New York

The present action, having been commenced within six months

after the Second Circuit’s affirmance of the dismissal of the prior

federal action, is timely if that action was timely brought (CPLR

205[a]; Wooster v Forty Second St. etc. R.R. Co., 71 NY 471;

Buchholz v United States Fire Ins. Co., 269 App Div 49, appeal

dsmd 294 NY 807). The City rightly contends that after the Su-

preme Court’s decision in Wilson v Garcia ( US , 1058S

Ct 1938) our holding in Fields v Board of Higher Educ. of City of

N. Y. (63 NY 827, affg 94 AD2d 202) that CPLR 214(2) governing

liability created by statute applies to §1983 actions is no longer

good law. We disagree, however, with its argument that the one-

year-90-day period established by General Municipal Law §50-

i(1), rather than the three-year period governing actions for dam-

ages for personal injuries (CPLR 214[5]), applies under the

Wilson rationale.

Wilson held that uniformity within each state was consistent

with the borrowing principle contained in 42 USC §1988 and that

that statute should, therefore, be “construed as a directive to se-

lect, in each State, the one most appropriate statute of limitations

for all §1983 claims” (___US at ___., 105 S Ct at 1947). Al-

though it was argued that the action before it, for personal inju-

ries resulting from an assault by a New Mexico State Police Offi-

cer, was barred by New Mexico’s two-year statute covering

“‘falctions against a governmental entity or a public employee for

torts,” the Supreme Court held that the three-year statute appli-

cable generally to actions for injury to the person had been cor-

rectly applied. It reasoned that §1983 conferred a general remedy

for injuries to personal rights and rejected the shorter statute ap-

plicable to tort actions against public employees because

(___US at , 105 S Ct at 1949):

we are satisfied that Congress would not have characterized

A-11

Opinion of Court of Appeals of State of New York

§1983 as providing a cause of action analogous to state rem-

edies for wrongs committed by public officials. It was the

very ineffectiveness of state remedies that led Congress to

enact the Civil Rights Acts in the first place. Congress there-

fore intended that the remedy provided in §1983 be inde-

pendently enforceable whether or not it duplicates a parallel

state remedy. The characterization of all §1983 actions as in-

volving claims for personal injuries minimizes the risk that

the choice of a state statute of limitations would not fairly

serve the federal interests vindicated by §1983. (Footnote

and citations omitted).

That reasoning answers as well the City’s suggestion that the

three-year provision of CPLR 214(5) should not be applied be-

cause to do so will, in light of General Municipal Law §50-e(5),

also extend to three years the time to apply for permission to

serve a late notice of claim. That the shorter one-year-90-day pro-

vision of GML §50-i would limit the permissible extension as to a

notice of claim relating to a personal injury claim against a mu-

nicipality is simply irrelevant under Wilson’s reasoning. If the

shorter statute governing public employee torts is not to be ap-

plied to bar the action altogether, it should not be applied to bar

an application for extension of time to file a notice of claim. The

more particularly is this so in light of the factors which GML §50-

A-12

Opinion of Court of Appeals of State of New York

e(5) requires the court to consider when presented with an exten-

sion application.‘

Finally as to limitations, it is only necessary to note that the

culmination of the City’s alleged abuse of the tax assessment

process was the transfer by the City to itself of plaintiff's prop-

erty on April 9, 1979, less than three years before the federal

action was begun. The City argues, in an apparent effort to ob-

tain dismissal of Count I of the complaint, that that count ex-

cludes the taking of the April 9, 1979 deed as an element. Dis-

missal would be improper, however, because paragraph 26 of the

complaint specifically alleges the taking of the tax deed by the

City and attaches a copy of the deed to the complaint. That alle-

gation is realleged as part of Count I in paragraph 71 and the alle-

gations of Count I are realleged as part of Count I!. Whether

and, if so, to what extent acts of the City antedating April 2, 1979

* General Municipality Law §50-e(5) provides that: “Upon application, the |

court, in its discretion, may extend the time to serve a notice of claim specified

in paragraph (a) of subdivision one. The extension shall not exceed the time |

limited for the commencement of an action by the claimant against the public

corporation. In determining whether to grant the extension, the court shall |

consider, in particular, whether the public corporation or its attorney or its |

insurance carrier acquired actual knowledge of the essential facts constituting |

the claim within the time specified in subdivision one or within a reasonable

time thereafter. The court shall also consider all other relevant facts and cir- |

cumstances, including: whether the claimant was an infant, or mentally or

physically incapacitated, or died before the time limited for service of the no-

tice of claim; whether the claimant failed to serve a timely notice of claim by |

reason of his justifiable reliance upon settlement representations made by an

authorized representative of the public corporation or its insurance carrier;

whether the claimant in serving a notice of claim made an excusable error con-

cerning the identity of the public corporation against which the claim should

be asserted; and whether the delay in serving the notice of claim substantially

prejudiced the public corporation in maintaining its defense on the merits. An

application for leave to serve a late notice shall not be denied on the ground

that it was made after commencement of an action against the public corpora-

tion.”

A-13

Opinion of Court of Appeals of State of New York

should be excluded would, were we not dismissing for other rea-

sons, be for the Trial Judge to pass upon at trial, but dismissal of

Count | on limitations grounds would, at this point, be prema-

ture.

Dismissal of the complaint is, however, required by reason of

plaintiff's failure to file the notice of claim called for by General

Municipal Law §50-e or to apply for an extension of time to do so

within the three-year limitations period. Plaintiff argues that our

decision in Mills v County of Monroe (59 NY2d 307, cert denied

464 US 1018) should be repudiated as a matter of federal suprem-

acy, that the Syracuse City Charter notice of claim provision is

preempied by state law, that the present action is within Mills’

public interest exception, and that it has, in any event, substan-

tially complied with the requirement.

The applicability to a §1983 action of a state notice of claim

provision, involving as it does construction of 42 USC §1988, isa

matter.of federal law, but when, as here, there is neither a deci-

sion of tne Supreme Court nor uniformity in the decisions of the

lower federal courts, a state court required to interpret a federal

statute is not bound to follow the decision of the federal courts or

precluded from exercising its own judgment (Flanagan v

Prudential-Bache Sec., 67 NY2d 500, 506, cert denied

US , 55 USLW 3315).

In Chardon v Soto (462 US 650, 657) the Supreme Court iden-

tified the policies governing whether a local procedural rule

should be borrowed as “‘deterrence, compensation, uniformity,

or federalism.” In concluding in Mills that the notice of claim

A-14

Opinion of Court of Appeals of State of New York

provision of County Law §52° applied to a §1983 cause of action,

we pointed out that such provisions serve an important state in-

terest in that the governmental subdivision is allowed a meaning-

ful opportunity to investigate the claim in a timely manner and

thus protect itself against fraudulent claims and that General

Municipal Law §50-e authorizes a court to extend the time to file

such a notice to the full limitations period upon a finding that the

delay has not caused the municipality substantial prejudice. That

authority, we reasoned, and the fact that the statute is not applied

to an action to vindicate a public interest give the statute a flexi-

bility such that it could not be said to offend the federal policy

underlying the Civil Rights Act section there involved (42 USC

§1981). Furthermore, the opinion noted, such a provision is not

inconsistent with federal law merely because it may cause the

plaintiff to lose (citing Board of Regents v Tomanio, 446 US 478,

488, quoting Robertson v Wegmann, 436 US 584, 593).

The policy considerations favoring application have also been

discussed in Cardo v Lakeland Cent. School Dist. (592 F Supp

765) and by the dissenting judges in Brown v United States, 742

* In the present action the City relies upon both §8-115(2) of the Syracuse City

Charter and General Municipal Law §50-i. Plaintiff's argument that the City

Charter is a local law is incorrect, the Charter having been adopted by general

statute (Laws of 1885, ch 26) and amended to include the notice of claim pro-

vision by like statutes (Laws of 1905, ch 682). Plaintiff also contends that

GML §50-i(2) makes its provisions applicable rather than the City Charter

section. We do not find it necessary to decide whether the Charter’s broader

coverage makes it inconsistent with §50-i, for Wilson v Garcia, supra, having

characterized §1983 actions as involving claims for personal injury, such

“constitutional tort” actions (Pauk v Board of Trustees of City Univ. of N.Y.,

654 F2d 856, 866, cert denied 455 US 1000) are within the notice of claim re-

quirements of §50-i, although for the reasons above stated (p 11) not within its

one-year-90-day limitation period. For like reason such claim as the com-

plaint asserts based on the State Constitution is also barred by reason of the

failure to give notice of claim (Phelps Steel v City of Glens Falls, 89 AD2d

652), and we, therefore, need not consider plaintiff’s suggestion that it should

have been granted leave to replead to flesh out that claim.

A-15

Opinion of Court of Appeals of State of New York

F2d 1498, cert denied US , 105 S Ct 2153).° Cardo, refer-

ring to Mills’ state interest reasons, added that the two principal

policies embodied in §1983 were deterrence and compensation

and, adopting the reasoning of the Supreme Court in Tomanio

(supra, 446 US at 488) with respect to the statute of limitations

there involved, concluded that “[nJeither of these policies is sig-

nificantly affected by the notice of claim requirement, since

plaintiffs can readily enforce their claims, thereby recovering

compensation and fostering deterrence, simply by filing a timely

notice of claim” (592 F Supp at 773).

The Brown dissent answered the majority’s contention that

federal law was to be considered deficient only if it did not supply

a universally familiar procedural aspect of litigation by pointing

to Robertson v Wegmann (436 US 584), in which the Court bor-

rowed a state survivorship statute which caused the action to

abate, finding no inconsistency in so doing, and to cases applying

local rules which preclude tolling of limitations while an indepen-

dent action is being pursued (Board of Regents v Tomanio, su-

pra) and start the running of limitations anew when a tolling per-

iod ends (Chardon v Soto, supra).

More importantly, however, the dissent pointed to the ubiquity

of notice of claim provisions and to the facts that they serve many

of the same policies as do statutes of limitations, that they go to

the remedy in the same way that a limitations statute does, that

the wide range of services provided by a municipality makes it

* Brown concerned a “constitutional tort” action brought under Bivens v Six

Unknown Agents of Federal Bureau of Narcotics, 403 US 388, §1983 not hav-

ing been made applicable to the District of Columbia at the time of the inci-

dent involved in Brown, 742 F2d at 1500, nn 1, 2. The considerations involved

are, however, essentially the same. Indeed, the opinions rely on a number of

§1983 cases. Brown was decided en banc by the Court of Appeals for the Dis-

trict of Columbia Circuit, the court dividing 7 to 4 against application of a

District notice of claim provision.

A-16

Opinion of Court of Appeals of State of New York

more likely that it may cause injury without knowing that it has

done so, that the notice of claim required to be filed does not re-

quire the kind of preparation necessary for litigation and leaves

the claimant with an additional two and one-half years to investi-

gate, negotiate, settle or sue. It noted also that none of the four

policies identified by the Supreme Court in Chardon v Soto, su-

pra, would be offended by a notice of claim provision: deterrence

and compensation for the same reason advanced in Jomanio and

Cardo, supra; uniformity because, as Robertson v Wegmann

stated (436 US at 594, n 11), “reliance on state law obviously

means that there will not be nationwide uniformity on these is-

sues,” and federalism because a notice of claim statute ensures

freshness of evidence, helps prevent unreasonable claims and

promotes justice.

With respect to deterrence, we add that because a municipal

official can never know in advance whether an injured party will

file a timely notice of claim or be granted leave to file a late notice

of claim, the effect of the provision is practically nil (cf. Robert-

son v Wegmann, 436 US at 592, supra). And with respect to the

purposes served by a notice provision, we note the not inconsid-

erable benefit in reducing the burden on courts, both state and

federal, when the notice results in negotiation and settlement of

claims rather than litigation.

The considerations against applying a notice of claim provi-

sion have been discussed by the Brown majority, and in Williams

v Allen (616 F Supp 653) and Burroughs v Holiday Inn (606 F

Supp 629, on rehearing 621 F Supp 351). The reasoning of the

Brown majority was that borrowing is to be indulged in only

when there is a deficiency in the federal scheme and not to do so is

inconsistent with federal policy, that the borrowing of state pro-

cedural rules has been limited to rules that “clearly establish the

point at which a cause of action ends” (742 F2d at 1505), that a

A-17

Opinion of Court of Appeals of State of New York

notice of claim provision has a purpose quite distinct from stat-

utes of limitation, tolling provisions and survival rules, that the

application of a local procedural rule “that would significantly

inhibit the ability to bring federal actions” (742 F2d at 1507) was

not reasonable, and that the notice of claim provision was a con-

dition precedent to accrual of a right against the municipality and

had its roots in sovereign immunity which is antithetical to the

federal scheme. Mills was distinguished by the majority because

of “the unusual flexibility of the relevant New York provision; it

was subject to waiver by the court if to waive would promote eq-

uity or the action would vindicate ‘the public interest’ ” (742 F2d

at 1509 n 6).’

Williams, like the Brown majority opinion, reasoned that ap-

plication of notice of claim provisions would effectively extin-

guish an important federal right and found a potentiai for confu-

sion and inequity in the public interest exception referred to in

Mills, which would result in barring an individual claimant who

failed to give notice and sued for himself alone rather than in the

public interest. And the Burroughs court found no void or defi-

ciency in the federal statute that made it incomplete without re-

sort to state law, and on reconsideration read Wilson’s refusal to

apply the state limitations statute applicable to governmental

torts as inconsistent with application of a notice of claim provi-

sion.

” Fuchilla vy Layman (210 NJ Super 574, 510 A2d 281) distinguished Mills on

this basis also.

NN eeeeEeEeEe

A-18

Opinion of Court of Appeals of State of New York

We are persuaded that application in federal civil rights actions

of the notice of claim requirements of GML §50-i as limited by

GML §50-e is proper.* Whatever may be the situation with respect

to the statutes of other states, it cannot be said that the provisions

of §50-i interpose an added element in the federal cause of action.

The cause of action arises when the conduct involved occurs and

will only be barred if the claimant neither gives notice within 90

days, nor within the next two years and nine months seeks an ex-

tension of the right to do so. Moreover, such an application for

leave to serve a late notice “shall not be denied on the ground that

it was made after commencement of an action” (GML §50-e[5]).

The provision is, therefore, essentially the same as a statute of

limitations, balancing the same interests as does such a statute,

but adding a notice procedure that is not difficult to comply with

(cf. Burnett v Grattan, 468 US at 50). More importantly, in view

of the opportunity afforded by §50-e(5) of applying for leave to

file a late notice, the failure to file such a notice within the 90-day

period prescribed in §50-e(1)(a) is not necessarily fatal to plain-

tiff's case. Compliance will, as noted above, have no practical ef-

fect on deterrence at all and will affect compensation only as to

those who have, as did the present plaintiff, slept on both the

* Cases refusing to apply a notice of claim statute are in the majority, but except

for the three above discussed advance no reason, other than precedent, for the

conclusion (Rosa v Cantrell, 705 F2d 1208, 1221, cert denied 464 U8 821;

Brandon v Board of Educ., 635 F2d 971, 973, n 2, cert denied 454 US 1123;

May v Enomoto, 633 F2d 164, 167; Doty v City of Rochester, 625 F Supp 829;

Williams v Allen, supra; Burroughs v Holiday Inn, supra; Altaire Builders,

Inc. v Village of Horseheads, 551 F Supp 1066; Glover v City of New York,

401 F Supp 632; Carrasco v Klein, 381 F Supp 782; Laverne v Corning, 316 F

Supp 629; Williams v Horvath, 16 Cal 3d 834, 548 P2d 1125; Overman v

Klein, 03 Idaho 795, 654 P2d 888; Fuchilla v Layman, supra; Doe v Ellis, 103

Wis 2d 581, 309 NW2d 375). Cases applying such a provision to a §1983

action, in addition to Mills and Cardo discussed above, are Deary v Three Un-

named Police Officers (746 F2d 185) and Indiana Department of Public Wel-

fare v Clark, 478 NE2d 699, cert denied 54 USLW 3809).

A-19

Opinion of Court of Appeals of State of New York

right to give the required warning of impending suit to the munic-

ipality and the right to obtain leave of court, at any time during

the full three-year limitation period, to give notice late. Nor in

our view does the public interest exception for state agency en-

forcenient proceedings, or for class action type proceedings nor-

mally involving a private attorney general type of action, militate

against application of §50-e to an individual claim for damages

such as is here involved.

In light of the foregoing analysis and bearing in mind that the

Supreme Court has yet to consider the question, we conclude that

General Municipal Law §50-i is applicable to this action.

Plaintiff’s contentions that the action is within the public inter-

est exception and that it has substantially complied with §50-e

may be more quickly answered. Union Free School Dist. No. 6 of

Towns of Islip & Smithtown v New York State Human Rights Ap-

peal Bd. (35 NY2d 371, 380) involved enforcement by the State

Division of Human Rights of an order made by it acting in the

public interest. But as we later made clear in Board of Educ. v

New York State Div. of Human Rights (44 NY 902, 904), notice of

claim provisions do apply to proceedings before the Division

when “only enforcement of private rights” is sought. Mills stated

the scope of the exception as “‘actions that are brought to protect

an important right, which seek relief for a similarly situated class

of the public, and whose resolution would directly affect the

rights of that class or group” (59 NY2d at 311 [emphasis sup-

plied]). As in Mills, so here, although plaintiff avers that the City

has engaged in unlawful practices affecting others than plaintiff,

the relief sought was limited to enforcement of plaintiff's private

rights rather than the vindication of rights of similarly situated

downtown property owners as a class.

A-20

Opinion of Court of Appeals of State of New York

Nor can plaintiff's application in the tax assessment proceed-

ing for a preliminary injunction or the notice of claim filed under

the Eminent Domain Procedure Law constitute substantial com-

pliance with GML §50-e. Neither set forth any claim under the

Civil Rights Act (Alaxanian v City of Troy, 69 AD2d 937; see,

Davidson v Bronx Hospital, 64 NY2d 59). The EDPL notice was

not filed within the required 90 days after the City took the tax

deed, and, as already noted, plaintiff never sought leave to file a

late notice as permitted by GML §50-e(5). Nor, no notice of claim

having been filed, was there any basis for the exercise by the

lower courts of the discretion vested in them by GML §50-e(6).

For the foregoing reasons, the order of the Appellate Division

should be affirmed, with costs.

* * *

Order affirmed, with costs. Opinion by Judge Meyer. Chief

Judge Wachtler and Judges Simons, Alexander, and Titone con-

cur. Judges Kaye and Hancock took no part.

Decided November 20, 1986

;

A-21

Opinion of Appellate Division

56 423 SOUTH SALINA STREET, INC., Appellant, v CITY

OF SYRACUSE et al., Respondents. —Order unanimously af-

firmed, without costs. Memorandum: Plaintiff appeals from an

order dismissing its complaint in an action brought under the

Federal civil rights statute (42 USC § 1983) alleging that the City

of Syracuse deprived it of its property by continually grossly

overassessing its property after the assessments had been reduced

by the courts in tax reduction proceedings.

We affirm because the complaint fails to state a cause of

action. Although an aggravated and persistent pattern of tax

abuse may constitute a taking or a deprivation of property in vio-

lation of a property owner’s civil rights, the facts alleged in the

complaint show that “[plaintiff] was not the one subjected to this

unlawful conduct” (Grant Co. v Srogi, 52 NY2d 496, 518). In

this action, therefore, plaintiff cannot rely upon the violation of

its predecessor’s constitutional rights, and following the reason-

ing of the Court of Appeals in Grant Co. v Srogi (supra), we find

that the city’s conduct directed against the plaintiff was insuffi-

cient to constitute a taking or a deprivation of property in viola-

tion of plaintiff’s civil rights. (Appeal from order of Supreme

Court, Onondaga County, Murphy, J. — dismiss complaint.)

Present—Callahan, J.P., Boomer, Green, Pine and Schnepp, JJ.

A-22

Opinion of Supreme Court, Onondaga County

STATE OF NEW YORK

SUPREME COURT

COUNTY OF ONONDAGA

423 SOUTH SALINA STREET, INC.,

Plaintiff,

THE CITY OF SYRACUSE, A Municipal Cor. DECISION

poration, METROPOLITAN DEVELOP.

MENT FOUNDATION OF CENTRAL NEW

YORK, INC., a Not for Profit Corporation,

and AMLEA (NEW YORK) INC.., a Business

Corporation,

Defendants.

APPEARANCES:

MOUSAW, VIGDOR, REEVES,

HEILBRONNER & KROLL

Scott R. Shewan, Esq., of Counsel

Attorneys for Plaintiff

600 First Federal Plaza

Rochester, NY 14614

OFFICE OF THE CORPORATION COUNSEL

David M. Garber, Esq., of Counsel

Attorneys for Defendant,

The City of Syracuse

301 City Hall

Syracuse, NY 13202

A-23

Opinion of Supreme Court, Onondaga County

HANCOCK AND ESTABROOK

William L. Allen, Jr., Esq., of Counsel

Attorneys for Defendants, Metropolitan

Development Foundation and Amlea (New York) Inc.

One MONY Plaza

Syracuse, NY 13202

MURPHY, J.:

This is a motion brought by defendant seeking an order dis-

missing the complaint. The stated grounds for relief are that the

action is time barred by reason of plaintiff's failure to serve a no-

tice of claim or to commence the action within the applicable

Statute of Limitations; that the complaint fails to state a cause of

action; that the equitable relief sought is barred by laches and by

plaintiff's lack of standing; that the punitive damage claim may

not be asserted against the defendant, City, and to the extent that

the complaint asserts claims under 42 U.S.C. Section 1985 and

1986, that such claims are barred by res judicata.

The facts indicate that in 1982, the plaintiff commenced an

action in the United States District Court (Northern District of

New York) against the City and certain of its officers allegedly

based on the same complaint that is now before the Court. In this

action the individual City officials have been dropped as parties

and the MDA Foundation, Inc. and Amlea (New York) Inc.,

have been added as parties. The District Court (Munson, J.) dis-

missed the claims under 42 U.S.C. Sec. 1983, on the grounds of

Comity and the Tax Injunction Act (28 U.S.C. 1341), which dis-

missal was not on the merits.

A reading of the decision of Judge Munson reveals that the

claims asserted under 42 U.S.C. Sections 1985 and 1986 were dis-

missed on the merits. On appeal, the United States Court of Ap-

peals for the Second Circuit affirmed the dismissal of the Section

A-24

Opinion of Supreme Court, Onondaga County

1983 claims and also a dismissal on the merits of the Section 1985

and Section 1986 claims, although on different grounds.

Plaintiff purchased the improved real property located in

downtown Syracuse on September 26, 1976, from the University

of Rochester. Plaintiff acquired the property for $25,000.00 sub-

ject to approximately $130,000.00 in unpaid 1976 real estate

taxes imposed on the property by the City of Syracuse.

The record shows that after acquisition, plaintiff never paid

the 1976 taxes nor any amounts, as reduced by the Appellate Di-

vision of the New York State Supreme Court, or after a decision

by the New York Court of Appeals, finally fixing the assessment.

On April 9, 1979, a tax deed to the property was issued to the

City of Syracuse by reason of plaintiffs tax delinquency to effect

the collection of the unpaid 1976 taxes. After the City took a tax

deed, the plaintiff applied for and was granted a preliminary in-

junction preventing the City from transferring the property to

third parties, which injunction was set aside on appeal by the

New York Court of Appeals on April 9, 1981.

On November 22, 1983, the City deeded its interest in the prop-

erty to defendant MDA Foundation, Inc. On December 14,

1983, plaintiff's federal action was dismissed by the U.S. Court

of Appeals. On December 19, 1983, the defendant MDA Foun-

dation, Inc., deeded its interest in the property to defendant Am-

lea (New York) Inc.

The action before this Court was commenced on March 6,

1984. The complaint seeks to vacate the tax deed and an award of

money damages upon the basis that plaintiff's constitutional

rights were violated. Plaintiff claims that prior to the taking of

the tax,deed, the assessment practices of the city with respect to

A-25

Opinion of Supreme Court, Onondaga County

the subject property destroyed its value, and that the tax deed it-

self violated its constitutional rights.

An affidavit signed by William L. Allen, Jr., Esq., the attorney

for the defendants The Metropolitan Development Foundation

of Central New York, Inc., and Amlea (New York), was submit-

ted in support of their motion to dismiss the complaint for failure

to state a cause of action and on the further grounds that the

action is barred by the Statute of Limitations. He states that there

are no allegations to show that defendants MDF and Amlea did

any acts which make them liable to plaintiff under the provisions

of Section 1983.

For the following reasons set forth in this decision, the Court

grants the motion of the defendant City of Syracuse.

The first point raised by the defendant City is that the plain-

tiff’s failure to serve a notice of claim bars the money damage

claims and the second point is that the action is governed and

barred by the year and 90-day period of General Municipal Law

Section 50-1(1)c.

Two statutes require a notice of claim against the City. The first

is a general law applicable to all municipalities, Section 50-i(1)(a)

of the General Municipal Law, which requires a notice of claim

to be served in accordance with Section 50(e) of the General Mu-

nicipal Law in any action against a municipality based on its neg-

ligent or wrongful acts. The second is the broader notice of claim

provisions of the current Syracuse City Charter, which requires a

notice of claim for any action based upon an alleged “omission

of duty, wrongful act, fault, neglect, misfeasance, or negligence”

of the City.

This Court agrees with the arguments proposed by the defend-

ant City on the notice of claim issue. In the case of Mills v County

A-26

Opinion of Supreme Court, Onondaga County

of Monroe, 59 NY2d 307 (1983), the New York Court of Appeals

held that a civil rights action cannot be maintained against a mu-

nicipality unless notice of claim statutes are complied with. The

Court stated that “the requirement of notice is one of the safe-

guards devised by the law to protect the municipalities against

fraudulent and stale claims for injuries to person and property

. . . [t]herefore, the general restrictive effect of the state notice of

claim requirement does not of itself bar its application to Federal

civil rights actions’’.

In the Mills case, supra, the Court also stated “this Court,

however, does not find that the State’s notice requirements are

antithetical to the policy underlined in the civil rights laws’’.

A comparison of ihe City Charter and Section 52 of the

County Law, which was the statute construed in Mills, reveals

that the language in both is similar. However, under the reasoning

of Mills, Sec. 50-e is also applicable to this claim and bars it.

The City also cites Phelps Steel v City of Glens Falls, 89 AD2d

652 (3rd Dept., 1982). That case states that “‘the claim against the

City is aclaim for money damages allegedly caused by [the City’s]

failure to discharge a duty imposed by law, i.e., to provide com-

pensation for the taking of private property for public use. It

clearly sounds in tort . . . and consequently a notice of claim is

required to be served upon the City . . . pursuant to Sec. 50-e of

the General Municipal Law’’.

The Court cannot accept the argument raised by the plaintiff

that the City has acquired knowledge of the facts underlying

plaintiff's claim. As the Mills case, supra, explains, the statute

itself permits relief from the notice requirement through an ap-

plication to the Court to serve a late notice of claim. (See General

Municipal Law, Sec. 50-e subd. 5) At the time a motion is made,

it is incumbent upon the Court to determine whether the City

Ge ee SR a Wiha a, | aa

\ st

;

A-27

Opinion of Supreme Court, Onondaga County

may have acquired knowledge of the facts underlying the plain-

tiff’s claim as well as consider other factors.

Even where a duly filed notice of claim exists, the failure to

mention a federal civil rights claim in the notice prohibits a plain-

tiff from asserting a federal civil rights claim in the underlying

action. (Alaxanian v City of Troy, 69 AD2d 937 [3rd Dept.,

1979])

With respect to the argument concerning the one year and 90-

day Statute of Limitations, this Court is aware that the State Ap-

pellate Divisions and the Federal Courts differ in their opinions

concerning the applicability of the statute. However, this Court

will be bound by the determination made by the Fourth Depart-

ment in the case of Staffen v City of Rochester, 80 AD2d 16 (4th

Dept., 1981). The Fourth Department has unanimously held that

the year and 90-day period of General Municipal Law Sec. 50-

i(1){c) applies in civil rights actions.

Congress did not provide Sections 1983 and 1985 of Title 42 of

the United States Code with their own Statute of Limitations so

that case law requires that the most appropriate period of limita-

tions provided by state law must be applied. (Board of Regents v

Tomanio, 446 US 478; Johnson v Railway Express Agency, 421

US 454, 462; Swan v Board of Higher Education of the City of

New York, 319 F 2d 56, 59)

The plaintiff argues that the three-year Statute of Limitations

in CPLR Sec. 214 (subd. 2) applies to this case since that section

involves ‘‘an action to recover upon a liability, penalty or forfeit-

ure created or imposed by statute”. The Staffen case, supra,

states that “Sec. 214 of the CPLR does not apply to statutes that

regulate a substantive right or the procedure for its enforcement

because such statutes do not create or impose a liability, penalty

or forfeiture. Sections 1983 and 1985 of Title 42 of the United

A-28

Opinion of Supreme Court, Onondaga County

States Code do not provide a substantive right but only furnish a

remedy for the enforcement of Federal constitutional rights.

(Citing cases)”

Reviewing the applicable provisions of the complaint, this

Court determines that the gravamen or essence of the cause of

action sounds in conversion. The applicable Statute of Limita-

tions for a conversion action is one year.

This action with respect to the Section 1983, claims, is deemed

to have been commenced when the Federal District Court action

was commenced on April 2, 1982. The cause of action accrued on

April 9, 1979, when the City took a tax deed. Accordingly, appli-

cation of the one year and 90-day period of Section 50-1(1)(c) of

the General Municipal Law bars this action.

It seems clear that the Section 1985 and 1986 claims were dis-

missed on the merits by the Second Circuit Court of Appeals and

are barred by res judicata. In plaintiffs affidavit it is stated that

“the inclusion of reference to the conspiracy causes of action un-

der 42 U.S.C. Section 1985 and 1986 in a preliminary statement to

the complaint was inadvertent. Plaintiff has requested no relief

for conspiracy herein”’.

No cause of action has been stated under Section 1983 against

defendants Metropolitan Development Foundation or Amlea.

The plaintiff has failed to set forth allegations to demonstrate

participation by these defendants in an alleged conspiracy or that

the defendants performed acts to deprive plaintiff of civil rights.

Such is necessary in seeking recovery under Section 1983. (Buck v

Board of Elections, City of New York, 536 F. 2d 522 [2 Cir. 1976])

There is also nothing in the complaint about any participation

by the defendants Metropolitan Development Foundation or

ahd aarti AF AE

A-29

Opinion of Supreme Court, Onondaga County

Amlea in Count One or Count Two concerning deprivation of

property.

Subsequent connection of a person with a particular property

involved is not sufficient to make that party liable to the plaintiff

who had previously owned the property. (Raitport v Provident

Bank, 451 F. Supp. 522 [E.D. Pa 1978]) This is also true in New

York cases which have found no cause of action existing through

subsequent connection with the property or subject of the suit.

(Newton v Livingston County Trust Co., 231 App. Div. 355 [4th

Dept., 1931])

The motion to dismiss of defendants Metropolitan Develop-

ment Corporation of Central New York, Inc. and Amlea (New

York) Inc. is granted.

Submit an order in accordance with this decision.

Dated: May 21, 1984

/s/ Thomas J. Murphy

Thomas J. Murphy, J.S.C.

A-30

Opinion of U.S. District Court

423 SOUTH SALINA STREET, INC., Plaintiff,

Vv.

CITY OF SYRACUSE, a Municipal Corporation; Robert Z.

Srogi, Individually and as Commissioner of Assessment of the

City of Syracuse; Frank L. Canino, Individually and as Com-

missioner of Finance of the City of Syracuse; Lee Alexander,

Individually and as Mayor of the City of Syracuse; and Jacob

Benderson, Individually and as Chairman, Assessment Board

of Review of the City of Syracuse, Defendants.

No. 82-CV-319.

United States District Court,

N.D. New York.

May 6, 1983.

Former owner of real property brought action for damages

against city and some of its major officials alleging that they had

overassessed his property and then purposely delayed any and all

efforts by owner to have overassessment corrected in the state

court system. On defendants’ motion to dismiss, the District

Court, Munson, Chief Judge, held that state of New York pro-

vided a plain, adequate and complete remedy for challenge to its

real property tax assessments, and thus principle of comity re-

quired dismissal of instant action.

Ordered accordingly.

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Rochester,

N.Y., for plaintiff; Ruth Kennedy-Daise, James S. Grossman,

Rochester, N.Y., of counsel.

David Garber, Corp. Counsel for the City of Syracuse, An-

thony S. Bottar, Syracuse, N.Y., Jacob Benderson, Syracuse, for

A-31

Opinion of U.S. District Court

defendants; Eric S. Benderson, Syracuse, N.Y., of counsel.

MEMORANDUM — DECISION AND ORDER

MUNSON, Chief Judge.

Plaintiff, the former owner of real property located in down-

town Syracuse, New York, has brought this action for damages

against the City of Syracuse and some of its major officials. Ac-

cording to plaintiff's complaint, defendants have been engaged

in a longstanding conspiracy to deliberately overassess real prop-

erty in the downtown area. In furtherance of this conspiracy,

plaintiff alleges, defendants overassessed plaintiff's property

and then purposefully delayed any and all efforts by plaintiffs to

have the overassessment corrected in the state court system.

Plaintiffs property was subsequently seized by the City for fail-

ure on the part of plaintiffs to pay their tax bills. A tax sale was

conducted by the City and the City “bought” the property for the

amount of unpaid taxes plus interest.

This action was brought by plaintiff under 42 U.S.C. § 1983

(Supp. IV 1980) to remedy what it perceived as a deprivation of

its property without due process of law, without just compensa-

tion, and without equal protection of the laws. In addition,

plaintiff alleges that the conspiratorial conduct of defendants vi-

olated 42 U.S.C. § 1985(3) (Supp. IV 1980), and that the failure

of defendants to prevent such conspiracy when each defendant

had the power to do so violated 42 U.S.C. § 1986 (Supp. V 1981).

Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343(3) (1976

& Supp. V 1981).

Presently before the Court is defendants’ motion to dismiss

the complaint pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. Defendants assert that plaintiff has failed to

state a claim upon which relief can be granted. In addition, de-

A-32

Opinion of U.S. District Court

fendants argue that the Tax Injunction Act, 28 U.S.C. § 1341

(1976), and principles of comity prectude this Court from enter-

taining plaintiff’s action for damages. Defendant Benderson has

also moved to dismiss the complaint on his own motion. Bender-

son moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or in the

alternative, moves for summary judgment pursuant to Fed.R.

Civ.P. 56.

As noted by the courts of the State of New York, the City of

Syracuse has been a “hotbed of tax litigation”’ W. T. Grant Co. v.

Srogi, 52 N.Y.2d 496, 506, 420 N.E.2d 953, 956, 438 N.Y.S.2d

761, 764 (1981). The real property that is the subject of this litiga-

tion has already been subject to various real estate assessment re-

view proceedings and the instant case appears to be an attempt to

turn much of the attendant frustration from those proceedings

into an award of damages. In order to place this proceeding in its

proper perspective, the Court finds that a review of the state

court proceedings is in order.

The property involved herein is located in the easterly half of

the 400 block of South Salina Street, and is found in Block Num-

ber 116 of the Onondaga County Clerk’s Index of Blocks. Origi-

nally owned by the University of Rochester, the property was

leased to the W.T. Grant Company in 1944. The lease to Grants

was for a term of 30 years, later extended to 1982 with an option

to renew until 2043. Pursuant to the terms of the lease, Grants

was required to pay annual rental charges in the amount of

$77,322.32, plus all taxes, utilities ard building maintenance ex-

penses. The Grant tenancy ended in 1976 when Grants went

bankrupt.

A-33

Opinion of U.S. District Court

Following the Grant bankruptcy in 1976, the building was sold

by the University of Rochester to plaintiff 423 South Salina

Street, Inc. Plaintiff purchased the property for $25,000.00 and

took it subject to the unpaid taxes for the year 1976. Accordingly,

when one considers the total amount of taxes due together with

interest and penalties, the full consideration given to the Univer-

sity of Rochester totaled $175,774.32. Plaintiff was of course

free to pursue real estate assessment review procedures in an at-

tempt to reduce the outstanding tax bills.

For the years 1964-78 inclusive, the City placed an assessed

value on the property of $1,135,700.00. The City placed an as-

sessed value on the property of $1,054,450.00 for the years 1979-

80 inclusive. Having received what it considered to be outrageous

real property assessments, Grants and later plaintiff instituted

assessment review proceedings every year from 1964 through

1980.

{1, 2] Under New York law, persons challenging real property

tax assessments must continue to pay their taxes during the pen-

dency of assessment review procedures. W.T. Grant Co. v. Srogi,

52 N.Y.2d at 516-17, 420 N.E.2d at 962, 438 N.Y.S.2d at 770. See

also First United Methodist Church of Syracuse v. City of Syra-

cuse, 489 F.Supp. 185, 188 (N.D.N.Y. 1980). Mere institution of

assessment review proceedings will not serve to stay either the col-

lection of real property taxes or enforcement procedures by the

taxing authority. W.T. Grant Co. v. Srogi, id. (citing N.Y. Real

Prop. Tax Law § 704(3) (McKinney 1972); People ex rel. Man-

hattan Ry. Co. v. Coleman, 48 Hun. 602, 1 N.Y.S.2d 112; People

ex rel. New York El. Ry. Co. v. Coleman, 48 Hun. 620, 1

N.Y.S.2d 551). While taxpayers who ultimately succeed in having

their assessments reduced are given refunds of the amounts over-

paid, this is small consolation considering the fact that the City

A-34

Opinion of U.S. District Court

need only pay 3% interest on the overpayments. N.Y.Gen.

Mun.Law § 3-a(1) (McKinney 1977 & Supp. 1982-83).

As noted above, the City continually assessed the Grant prop-

erty at $1,135,700.00. In December of 1972, Grants obtained a

judgment against the City for $276,400.19 representing overas-

sessments for the years 1964 through 1970. The city did not pay

the judgment, but rather instituted an appeal to the Appellate Di-

vision.’ By following this course, the City was able to take advan-

tage of a statutory stay pending appeal. N.Y.Civ.Prac.Law §

5519(a)(1) (McKinney 1978). Despite the fact that the trial court

found the proper assessments to be in the range of $632,100.00 to

$742,000.00, the City continued to assess the property at the old

rate of $1,135,700.00 for the years after 1970.

The next round of assessments to receive judicial review were

those for the tax years 1971 through 1976. These proceedings

were tried to the Honorable Henry A. Hudson beginning in May

of 1976. While it was anticipated that the proof in the proceed-

ings which covered upwards of 40 parcels of property would be

_ The New York Legislature has recently amended Section 3-a(1) of the General

Municipal Law by providing for an increase in the interest rate payable by mu-

nicipal corporations. This new rate of 9% goes into effect on the first day of

the fiscal year following the enactment date of the new law. 1982 N.Y. Laws ch.

681, § 1. The enactment date of the new law was July 22, 1982. Accordingly,

all payments of interest prior to the effective date of the new law will remain at

the 3% level. Since plaintiff no longer has any assessment review proceedings

pending, all references to interest payable will be to the older 3% rate.

* The City and Grants entered into negotiations to settle the 1972 judgment.

Pursuant to an elaborate agreement worked out between the parties, Grants

agreed to remain in business during the years 1975, 1976, and 1977. In return,

the City would refund $240,000.00 of the $276,400.19 figure if certain contin-

gencies occurred with respect to the City’s appeals on the overassessments.

With Grants having vacated the premises in 1976 due to its bankruptcy, it ap-

pears as though the City only paid $80,000.00 of the $240,000.00 settlement

agreement. It further appears that the City did not review the assessment of

the property pursuant to the terms of the agreement.

A-35

Opinion of U.S. District Court

completed by September 1, 1976, delays caused largely by the

City resulted in the proceedings running until the end of the year.

Justice Hudson rendered his decision in late February of 1978.

In a judgment dated April 21, 1978, the City was ordered to re-

fund $239,933.20 for overpayments on assessments for 1971

through 1975. Although Justice Hudson found overassessments

for the tax year 1976 as well, no refund was ordered because nei-

ther Grants nor plaintiff paid any taxes during that year. The

proper assessments ranged from $604,000.00 to $823,500.00 for

the years 1971 through 1976. Once again, the City chose not to

pay the refuiid and exercised its right to appeal.

During the course of the City’s appeal of the 1971 through

1976 assessments, the City took a tax deed on plaintiff's property

for non-payment of the 1976 taxes. The deed was recorded in the

Onondaga County Clerk’s Office on April 9, 1979. According to

the terms of the deed, the City was the highest bidder on the prop-

erty at a “tax sale” conducted on April 6, 1977. Thus, plaintiff

was divested of its property as of April 9, 1979. Although Justice

Hudson found that the City had overassessed the property for

the tax year 1976 by over 100%, plaintiff did not pay taxes on

either the full assessment of $1,135,700.00 or the reduced assess-

ment of $604,000.00.’

The record is unclear whether plaintiff could have paid part of the 1976 taxes

during the pendency of the City’s appeal. Nevertheless, plaintiff was con-

fronted with the well-established rule in New York that one complaining of

overassessments must pay the tax and then sue for arefund. W. 7. Grant Co. v.

Srogi, 52 N.Y.2d at 516-17, 420 N.E.2d at 962, 438 N. Y.S.2d at 770. Itis undis-

puted that plaintiff never paid any real property taxes with respect to its prop-

erty. Thus, plaintiff paid $25,000.00 for the property in the hopes of receiving

a favorable decision on the claim of overassessment. If such a decision was

rendered, and, of course, upheld on appeal, then plaintiff would have paid the

assessment. In this manner, plaintiff's speculation would have resulted in ac

quisition of the property at a “bargain price.”

A-36

Opinion of U.S. District Court

On May 17, 1979, the Honorable Richard Aronson enjoined

the City from transferring title to the property to any third party

pending a final appellate decision on the assessments.‘ The Ap-

pellate Division, Fourth Department, affirmed Justice Hudson’s

decision on the assessments and further reduced the total as-

sessed values to the point where the refund due was $353,734.81;

plus interest and costs, for the years 1971 through 1976. In addi-

tion, the Appellate Division affirmed Justice Aronson’s grant of

the injunction, finding that

[w]e do not suggest that injunctive relief is available in ordi-

nary tax review proceedings or even in unusual ones. We do

hold, however, that this taxpayer has demonstrated a long

and aggravated pattern of conduct by the City from which

the taxpayer cannot reasonably protect itself or its property

without injunctive relief.

W.T. Grant Co. v. Srogi, 71 A.D.2d 457, 475, 423 N.Y.S.2d 324,

336 (4th Dep’t 1979), rev’d 52 N.Y.2d 496, 420 N.E.2d 953, 438

N.Y.S.2d 761 (1981).

On April 9, 1981, the New York Court of Appeals affirmed the

Appellate Division’s determination on the 1971 through 1976 as-

sessments and entered final judgment in the amount of

$353,734.81, plus interest and costs. With regard to the tax year

1976, the correct figure for assessed value was $380,000.00 with

the correct figure for tax due being $42,997.00. Thus, the City

had sought to collect $85,507.46 more in taxes from plaintiff

than was finally determined to be due and owing.

* Justice Aronson’s injunction prohibited transfer until the pending assessment

review proceedings for the years 1971 through 1976 had been completed. It

should also be noted that the injunction covered a pending assessment review

proceeding for the years 1977 through 1979. This later proceeding was ulti-

mately dismissed in 1981 for failure to prosecute.

A-37

Opinion of U.S. District Court

With regard to the injunction, the Court of Appeals reversed.

Although the Court found that the City’s conduct had been out-

rageous, plaintiff was not entitled to an injunction because it

lacked equitable standing.

The facts in the present case are quite compelling. As noted

by the Appellate Division, taxpayers have been paying ex-

cessive taxes on the Grant property for over 12 years despite

court rulings that the assessments were unlawful by reason

of overvaluation. Substantial refunds were ordered on two

occasions, but the city to date has repaid only a small por-

tion of the taxes it has unlawfully collected. Such an aggra-

vated pattern of misuse of the taxing power might have been

sufficient to justify restraining the city from transferring ti-

tle to the Grant property pending the final determination of

the assessment proceedings. Nevertheless, the simple fact of

the matter is that the party who obtained the injunction

[423] South Salina Street, Inc., was not the one subjected to

this unlawful conduct.

WT. Grant Co. v. Srogi, 52 N.Y.2d at 518-19, 420 N.E.2d at 963,

438 N.Y.S.2d at 771-72. The Court of Appeals went on to ob-

serve that plaintiff

purchased the property at the low price of $25,000 with the

understanding that it would assume all tax liability then ow-

ing. These taxes were never paid, nor did [423] South Salina

Street, Inc. pay taxes on the property for the next three

years. Under these circumstances, while Grant may have

been entitled to an injunction against the city, [423] South

Salina Street, Inc., lacks equitable standing to assert the ag-

gravated pattern of tax abuse to which its predecessor in in-

terest was subject as the basis for injunctive relief. There-

fore, we conclude that it was error to issue the injunction in

this case.

Id. at 519, 420 N.E.2d at 961-64, 438 N.Y.S.2d at 772. Thus, it

was just a case of the wrong plaintiff at the right time.

A-38

Opinion of U.S. District Court

Defendants have raised the spectre of the Tax Injunction Act

and principles of comity as a complete bar to this Court’s juris-

diction. The Tax Injunction Act provides that:

The district courts shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State law

where a plain, speedy and efficient remedy may be had in

the courts of such State.

28 U.S.C. § 1341. This legislation, according to the Supreme

Court, “reflect[s] the fundamental principle of comity between

federal courts and state governments that is essential to ‘Our

Federalism, particularly in the area of state taxation.” Fair As-

sessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. 100, 103,

102 S.Ct. 177, 179, 70 L.Ed.2d 271 (1981).

Even before the enactment of the Tax Injunction Act, the Su-

preme Court followed a policy of equitable restraint when deal-

ing with state tax questions. This policy is best observed in Mart-

thews ‘v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447

(1932), where the Court reversed a grant of an injunction against

the collection of a state tax. In Matthews, a three-judge district

court enjoined the collection of a Mississippi tax on persons in

the cotton industry. The Court found the injunction to be beyond

the equitable powers of the district court. Since there was a

“‘plain, adequate and complete” remedy in the state court sys-

tem, id. at 526, 52 S.Ct. at 220, federal equity jurisdiction was

lacking. The Matthews Court explained that

[t]he scrupulous regard for the rightful independence of

state governments which should at all times actuate the fed-

eral courts, and a proper reluctance to interfere by injunc-

a v7

Pe eS

pees AN PE

A-39

Opinion of U.S. District Court

tion with their fiscal operations, require that such relief

should be denied in every case where the asserted federal

right may be preserved without it.

Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 454 U.S. at

108, 102 S.Ct. at 182 (citing Matthews v. Rodgers, 284 U.S. at

525, 52S.Ct. at 219).

Following passage of the Tax Injunction Act in 1937,’ the Su-

preme Court continued to recognize the comity principles at

work in Matthews v. Rodgers. In Great Lakes Dredge & Dock

Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407

(1943), plaintiffs sought a declaratory judgment that certain pro-

visions in the Louisiana unemployment insurance tax laws were

unconstitutional as applied to them. Relying on Matthews v.

Rodgers, the Court in Great Lakes refused to allow the entry of

such a declaratory judgment due to considerations of federalism

and comity. “‘[W]e are of the opinion that those considerations

which have led federal courts of equity to refuse to enjoin the col-

lection of state taxes, save in exceptional cases, require a like re-

straint in the use of the declaratory judgment procedure.” Jd. 319

U.S. at 301, 63 S.Ct. at 1074.

In Fair Assessment in Real Estate Ass’n, Inc. v. McNary, the

Supreme Court was presented with a conflict between the above-

mentioned principles of restraint and the broad remedial princi-

ple of 42 U.S.C. § 1983. While the Tax Injunction Act was a di-

rect restraint on federal court jurisdiction, 42 U.S.C. § 1983 ex-

pressed the Congressional intent that there be immediate

availability of a federal forum for persons whose constitutional

or federal rights had been abridged by any state. To resolve this

* Act of August 21, 1937, 50 Stat. 738.

A-40

Opinion of U.S. District Court

conflict, the Court turned to the facts of the Fair Assessment case

and compared them with the policies underlying each of the stat-

utes.

Petitioners in Fair Assessment were landowners and a non-

profit corporation formed by taxpayers to promote equitable real

property assessments in St. Louis County and throughout the

State of Missouri. According to their complaint, St. Louis

County officials assessed properties with new improvements at

33.3% of their current market value while assessing similar prop-

erties without new improvements at 22% of current market

value. 454 U.S. at 106, 102 S.Ct. at 181. In addition, petitioners

claimed that property owners who successfully appeal their real

property tax assessments are targeted for reassessment the fol-

lowing year. Jd. Although petitioner Cassilly, the landowner,

sought limited relief in the Missouri State court system, his ef-

forts proved unsuccessful. Accordingly, he filed suit in the fed-

eral district court seeking actual damages in the amount of over-

assessments as well as punitive damages from each of the

defendant real property tax officials. Petitioner Fair Assessment

in Real Estate Ass’n, Inc. soughi damages in the amount of ex-

penses incurred in promoting its cause.

[3] The Court found that resort to the Tax Injunction Act was

not required. According to the majority, principles of comity bar

the award of damages in a federal court under 42 U.S.C. § 1983

for the alleged unconstitutional administration of state tax sys-

tems. Where state remedies are “plain, adequate and complete,”

* In footnote 8, 454 U.S. at 116, 102 S.Ct. at 186, the Court observed that the

phrase “plain, adequate and complete” found in the Matthews and Great

Lakes decisions should be given the same meaning as the phrase “plain,

speedy and efficient” found in the Tax Injunction Act. For a determination as

to the effectiveness of state remedies, the federal court must, of course, look to

the applicable state law.

ORES, See eae,

Teil eats

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A-41

Opinion of U.S. District Court

the door to the federal courts will be closed to the state taxpayer.

454 U.S. at 116, 102 S.Ct. at 186. Of particular import to the in-

stant case is the following passage.

Petitioners will not recover damages under [42 U.S.C.] §

1983 unless a district court first determines that respon-

dents’ administration of the county tax system violated peti-

tioners’ constitutional rights. In effect, the district court

must first enter a declaratory judgment like that barred in

Great Lakes. We are convinced that such a determination

would be fully as intrusive as equitable actions that are

barred by principles of comity [footnote omitted]. More-

over, the intrusiveness of such [42 U.S.C.] § 1983 actions

would be exacerbated by the nonexhaustion doctrine of

Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492]

(1961). Taxpayers such as petitioners would be able to in-

voke federal judgments without first permitting the State to

rectify any alleged impropriety.

Id. at 113-14, 102 S.Ct. at 184-85. Therefore, the Court must de-

termine whether plaintiff may protect its federal rights by resort

to “plain, adequate and complete” state procedures. If such a

stace remedy is available, then plaintiff's complaint must be dis-

missed on the grounds of comity.’

’ This result is also consistent with the past law in this Circuit. For example, in

Evangelical Catholic Communion, Inc. v. Thomas, 373 F.Supp. 1342 (D.Vt.

1973), aff'd without opinion, 493 F.2d 1397 (2d Cir. 1974), the district court

dismissed a similar action for damages, finding that a prerequisite for the

award of damages would be the declaration that plaintiff's rights had been vio-

lated. 373 F.Supp at 1344. While Evangelical Catholic Communion, Inc. v.

Thomas was decided on the basis of the Tax Injunction Act, it was cited with

approval in Fair Assessment, 454 U.S at 113-14 n.7, 102 S.Ct. at 184-85 n.7.

See also Wells v. Malloy, 510 F.2d 74 (2d Cir. 1975); Hickman v. Wujick, 488

F.2d 875 (2d Cir. 1973); American Commuters Assn. Inc. v. Levitt, 405 F.2d

1148 (2d Cir. 1969).

A-42

Opinion of U.S. District Court

Plaintiff seeks to avoid the harshness of the rule expressed in

Fair Assessment by advancing the position that this Court need

not make a determination or judgment about the constitutional-

ity of defendants’ conduct. According to plaintiff, the New York

Court of Appeals has explicitly held that defendants abused their

taxing authority and that this finding is binding on this Court by

virtue of 28 U.S.C. § 1738 (1976). On the other hand, defendants

seek to make the identical argument by asserting that the New

York Court of Appeals has explicitly held that plaintiff was not

the victim of defendants’ unlawful conduct.

[4] The principles of res judicata (claim preclusion) and collat-

eral estoppel (issue preclusion) are fully applicable to actions

brought under the federal civil rights statutes. Allen v. /{cCurry,

449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Gargiul v.

Tompkins, 704 F.2d 661, 665 (2d Cir. 1983). Res judicata serves to

bar relitigation of issues actually raised and decided as well as

those issues that could have been, but were not, raised and de-

cided in that action. Gargiul v. Tompkins, 704 F.2d at 665. There

must have been, of course, a final judgment on the merits for res

judicata to apply. As to the invocation of collateral estoppel, is-

sues that have already been litigated and determined adversely to

a party in a prior action may not be relitigated where such adverse

determination was necessary to the judgment in the action. Jd.

In the present case, the parties seek to invoke res judicata and/

or collateral estoppel with respect to two specific findings by the

New York Court of Appeals: (1) that defendants abused their tax-

ing power with respect to real property assessments on plaintiff's

property for the years 1964-76; and (2) that plaintiff was not the

one subjected to defendants’ unlawful conduct. W.T: Grant Co.

v. Srogi, 52 N.Y.2d at 518-19, 420 N.E.2d at 963, 438 N.Y.S.2d at

A-43

Opinion of U.S. District Court

771-72. Clearly, each party seeks to preclude the other from reliti-

gating only that issue which helps his respective case.

[5] The Court of Appeals restricted its ruling to the propriety

of the 1971-76 assessments. No finding was made on the then-

pending 1977-79 assessments. Thus, there has been no court de-

termination, either state or federal, about the propriety of the

real property assessments during the time when plaintiff had an

interest in the property. Accordingly, res judicata or collateral es-

toppel would not aid plaintiff or defendant in the instant case.

[6] As to the Court of Appeals’ finding that plaintiff was not

damaged by defendants’ unlawful conduct, such finding has no

bearing on the instant case due to its interlocutory character. The

Court of Appeals made this reference to plaintiff's equitable

standing in the context of a preliminary injunction. No final deci-

sion on the question of whether plaintiff was ever injured by de-

fendants during the time when it had an interest in the property

was ever entered. Thus, as with the ruling on the assessments, res

judicata and collateral estoppel do not serve to bar relitigation in

the instant case. Therefore, the Court is faced with the identical

situation presented in the Fair Assessment case: a taxpayer’s suit

for damages under 42 U.S.C. § 1983 based on the validity of a

state taxing system. Moreover, as in Fair Assessment, there has

been no finding that plaintiff has been injured by defendants’

conduct.

In order to determine the adequacy of plaintiff’s remedies un-

der New York law, the Court must first turn its attention to the

recent Supreme Court decision in Rosewell v. LaSalle Nat’l

Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). In

Rosewell, the Court explained that state remedies are to be mea-

sured in a “procedural” rather than a substantive context. Jd. at

A-44

Opinion of U.S. District Court

512, 101 S.Ct. at 1228; Lamont v. Tully, 517 F.Supp. 462, 464

(N.D.N.Y.), vacated:on other grounds, 92 F.R.D. 462 (N.D.N.Y.

1981). The procedures available under Illinois law in the Rosewell

case were determined to be adequate because taxpayers were pro-

vided with a “ ‘full hearing and judicial determination’ at which

[they] may raise any and all constitutional objections to the tax.”

450 U.S. at 514, 101 S.Ct. at 1229. Appellate review was available

through the Illinois State court system with ultimate review in the

Supreme Court available under 28 U.S.C. § 1257 (1976). Al-

though state court review normally takes two years time after

which the state refunded overpayments without interest, the Su-

preme Court found such procedure to be “speedy” within the

meaning of the Tax Injunction Act. Jd. at 520-21, 101 S.Ct. at

1232-33.

Under New York law, the normal method for challenging the

validity of real property assessments is through the procedures in

Article 7 of the Real Property Tax Law. N.Y. Real Prop. Tax Law,

Art. 7 (McKinney 1972 & Supp. 1982-83); First United Methodist

Church of Syracuse v. City of Syracuse, 489 F.Supp. 185, 188

(N.D.N.Y. 1980). The facts of the present case suggest, however,

that this procedure is neither “plain, adequate and complete”

within the meaning of the Matthews, Great Lakes, or Fair As-

sessment decisions, nor “plain, speedy and efficient” within the

mea:ag of the Tax Injunction Act." Through the use of New

York’s statutory stay provision, the City has been able to drag as-

sessment review proceedings well beyond the so-called two year

maximum time period allegedly set down by the Court in Rose-

well v. LaSalle Nat’! Bank. See Friarton Estates Corp. v. City of

New York, 681 F.2d 150, 157-58 (2d Cir. 1982). Thus, the Court

* It must, of course, be remembered that plaintiff never followed through with

its Article 7 assessment review procedures. See note 4 supra. At the time of

their dismissal, four years had elapsed since the inception of the first year’s

review proceeding.

a . . a “ot 2% he ‘<2

pstmt eee As Simi Te AES 1

ade ether i Eel I IS

A-45

Opinion of U.S. District Court

must determine whether other procedures available under New

York law could adequately protect plaintiff's federal rights. Fair

Assessment, 454 U.S. at 116, 102 S.Ct. at 186.

[7] As the Supreme Court noted in Fair Assessment, 454 U.S.

at 116-17, 102 S.Ct. at 186, the availability of a state forum in

which to pursue an action under 42 U.S.C. § 1983 strongly sup-

' ports the withholding of federal jurisdiction. Here, it is undis-

puted that the courts of the State of New York will entertain such

civil rights actions. Moreover, as this Court observed in the First

United Methodist Church of Syracuse case, 489 F.Supp. at 188,

taxpayers complaining of unlawful or discriminatory real prop-

erty tax assessments may avail themselves of New York’s declara-

tory judgment procedure. N.Y.Civ.Prac.Law § 3001 (McKinney

1974). In addition, New York practice provides for an expedited

review of official action through what has come to be known as

an “Article 78 proceeding.” N.Y.Civ.Prac.Law, Art. 78 (McKin-

ney 1981 & Supp. 1982-83). See Tully v. Griffin, 429 U.S. 68, 97

S.Ct. 219, 50 L.Ed.2d 227 (1976). Thus, it appears as though

New York offers an entire range of proceedings in which taxpay-

ers may challenge real property tax assessments.

In opposition plaintiff argues that these procedures all have

short statutes of limitations and that dismissal of this action will

result in plaintiff being left without any method of redress. How-

ever, the fact that the statute of limitations may have expired is

irrelevant to the issue of whether plaintiff has an adequate state

remedy. Instructive in this regard is the case of Henry v. Metro-

politan Dade County, 329 F.2d 780 (Sth Cir. 1964), where the

court stated that

[t]he existence of a remedy in the State court effectively

ousts the federal court of jurisdiction. . . . The expiration

of time in which the state suit might have been brought does

not result in the destruction of the plain and simple remedy

A-46

Opinion of U.S. District Court

principle specified in the [Tax Injunction Act]. To hold oth-

erwise would allow any disgruntled taxpayer to simply wait

until the statute of limitations had run in the state courts and

then bring suit in the federal! court.

Id. at 781. See also Town of Ball v. Rapides Parish Police Jury,

597 F.2d 43, 45-46 (Sth Cir. 1979); Aluminum Co. of Am. v. De-

partment of Treasury of State of Michigan, 522 F.2d 1120, 1125

(6th Cir. 1975); Bonin v. Gannon, 494 F.Supp. 78, 81 (M.D.Pa.

1980); Group Assisting Sewer Proposal-Ansonia v. City of Anso-

nia, 448 F.Supp. 45, 47 (D.Conn. 1978); Klotz v. Consolidated

Edison Co. of New York, 386 F.Supp. 577, 587 (S.D.N.Y. 1974).

[8] Accordingly, this Court finds that the State of New York

provides a “plain, adequate and complete” remedy for chal-

lenges to its real property tax assessments and, therefore, princi-

ples of comity require dismissal of the instant action. This resu!t

is also consistent with the mandate of the Tax Injunction Act. Al-

though plaintiff asserts that the decision in Staffen v. City of

Rochester, 80 A.D.2d 16, 437 N. Y.S.2d 821 (4th Dep’t 1981), pre-

cludes it from filing a civil rights action in the state courts, this

Court notes that Staffen may not be the last word on the statute

of limitations for actions brought under 42 U.S.C. § 1983. Just

three months after the decision in Staffen, the United States

Court of Anpeals for the Second Circuit decided Pauk v. Board

of Trustees of City Univ. of New York, 654 F.2d 856 (2d Cir.

1981).

In Pauk, the court made a detailed examination of the scope

and effect of 42 U.S.C. § 1983 and compared this analysis to the

various New York statutes of limitations. The Pauk court con-

cluded that the three year statute of limitations applied to actions

brought under 42 U.S.C. § 1983 rather than the one year and

ninety day statute of limitations expressed in Staffen. In view of

the Pauk decision, the courts of the State of New York, and more

A-47

Opinion of U.S. District Court

particularly the Fourth Department, may reconsider the Staffen

decision. Thus, it cannot be said that plaintiff is completely fore-

closed from any relief in the New York State court system.

[9] With regard to plaintiff’s allegation of a conspiracy, the

Court agrees with defendants that plaintiff has failed to meet the

somewhat stringent pleading requirements of this Circuit. Plain-

tiff has failed to put forward any specific facts concerning the

alleged conspiracy among defendants, and its complaint con-

tains only the barest of allegations supporting such a claim. With

such “vague,” “conclusory” and “general” allegations of a con-

spiracy to deprive plaintiff of its civil rights, Contemporary Mis-

sion, Inc. v United States Postal Service, 648 F.2d 97, 107 (2d Cir.

1981) (citing Ostrer v. Aronwald, 567. F.2d 551, 553 (2d Cir.

1977), plaintiff's complaint cannot withstand a motion to dis-

miss. As to plaintiff’s claim under 42 U.S.C. § 1986, it follows

that having proved no conspiracy under 42 U.S.C. § 1985, plain-

tiff cannot succeed on its claim that defendants could have pre-

vented such conspiracy. Powell v. Kopman, 511 F.Supp. 700, 704

(S.D.N.Y. 1981); Slegeski v. Ilg, 395 F.Supp. 1253, 1255-56

(D.Conn. 1975).

In conclusion, the Court finds that the State of New York pro-

vides its citizens with a “plain, adequate and complete” remedy

for challenging real property tax assessments. Accordingly, prin-

ciples of comity as well as the Tax Injunction Act preclude the

instant suit for damages in federal district court. In addition,

plaintiff has failed to prove its allegations of a conspiracy among

A-48

Opinion of U.S. District Court

defendants. Finally, absent proof of a conspiracy, plaintiff may

not succeed on its claim that defendants failed to prevent such

conspiracy.’ Therefore, it is

ORDERED, that defendants’ motion to dismiss the complaint

is hereby granted.

* In view of this Court’s ruling on defendants’ motion to dismiss the complaint

pursuant to Fed.R.Civ.P. 12(b)(6). there is no need to reach the motion made

on behalf of defendant Benderson in his individual capacity.

A-49

Per Curiam Opinion of U.S. Court of Appeals

423 SOUTH SALINA STREET,

INC., Appellant,

Vv.

The CITY OF SYRACUSE, a Municipal Corporation, Robert

Srogi, Individually and as Commissioner of Assessment of the

City of Syracuse, Frank L. Canino, Individually and as Com- .

missioner of Finance of the City of Syracuse, Lee Alexander,

Individually and as Mayor of the City of Syracuse, and Jacob

Benderson, Individually and as Chairman, Assessment Board

of Review of the City of Syracuse, Appellees.

No. 183, Docket 83-7432.

United States Court of Appeals,

Second Circuit.

Argued Oct. 24, 1983.

Decided Dec. 14, 1983.

Purchaser of allegedly overassessed property brought federal

civil rights suit challenging city’s seizure of the property after

purchaser failed to pay outstanding tax liability on it. The United

States District Court for the Northern District of New York, Ho-

ward G. Munson, Chief Judge, dismissed the complaint, 566

F.Supp. 484, and plaintiff appealed. The Court of Appeals held

that: (1) priniciples of comity barred award of damages under

civil rights statute, and (2) federal statute prohibiting conspira-

cies to deprive others of constitutional rights did not reach al-

leged conspiracy involving the tax assessments.

Affirmed.

A-50

Per Curiam Opinion of U.S. Court of Appeals

James S. Grossman, Rochester, N.Y. (Ruth Kennedy-Daise,

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Rochester, N.Y.,

of counsel), for appellant.

James L. Gelormini, First Asst. Corp. Counsel, Syracuse,

N.Y. (David M. Garber, Corporation Counsel, Syracuse, N.Y.,

of counsel), for appellees City of Syracuse, Srogi, Canino, and

Alexander.

Eric S. Benderson, Syracuse, N.Y. (Jacob Benderson, Syra-

cuse, N.Y., Judith Kunzman Benderson, Potomac, Md., oi

counsel), for appellee Benderson.

Before OAKES and KEARSE, Circuit Judges, and WYZAN-

SKI, District Judge.*

PER CURIAM:

According to the New York courts, the City of Syracuse has

engaged in “an aggravated pattern of misuse of the taxing

power” by overassessing property year after year despite court

rulings that such overassessments were unlawful. This “long and

aggravated pattern of conduct” has enabled the City to have use

of the overassessed amounts at the expense of taxpayers who are

* Of the District of Massachusetts, sitting by designation.

' WT. Grant Co. v. Srogi, 52 N.Y.2d 496, 518-19, 420 N.E.2d 953, 963, 438

N.Y.S.2d 761, 772 (1981) (denying injunction to present appellant on basis

that it lacks equitable standing to assert aggravated pattern of tax abuse

against its predecessor in title).

* WT. Grant Co. v. Srogi, 71 A.D.2d 457, 574, 423 N.Y.S.2d 324, 336 (1979),

aff'd in relevant part, $2 N.Y.2d 496, 420 N.E.2d 953, 438 N.Y.S.2d 761

(1981), .

A-51

Per Curiam Opinion of U.S. Court of Appeals

left to fight prolonged administrative and judicial battles, and

who recover a mere 3% surcharge upon proving overassess-

ments.

Appellant is a purchaser of one such overassessed piece of

property, having bought it at a low price with the understanding

that the outstanding tax liability would be assumed. Appellant

did not, however, pay that liability, nor did it pay the taxes for the

following three years. As a result, the City seized the property

and ultimately “bought it” for the amount of unpaid taxes plus

interest.

{1} Appellant brought a federal civil rights suit challenging

these actions. It alleged violations of 42 U.S.C. § 1983 (Supp.

1981) for deprivation of its property without due process or just

compensation and without equal protection of the laws. In addi-

tion, it made claims under 42 U.S.C. §§ 1985(3) and 1986 (1976 &

Supp. 1981), alleging that the City and some of its major officials

conspired to violate appellant’s civil rights and failed to prevent

the operation of such a conspiracy when they had the power to do

so. The United States District Court for the Northern District of

New York, Howard G. Munson, Chief Judge, dismissed the com-

plaint in a well-reasoned opinion. The court held that appellant’s

Section 1983 claim was barred by Fair Assessment in Real Estate

Association, Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70

L.Ed.2d 271 (1981) (principles of comity bar award of damages

in federal court under Section 1983 for alleged unconstitutional

administration of state tax assessments), and that the allegations

’ N.Y.Gen.Mun. Law § 3-a(1) (McKinney 1977). The New York legislature has

subsequently increased the interest rate to 9% as of July 22, 1982. 1982

N.Y. Laws ch. 681 § 1.

A-52

Per Curiam Opinion of U.S. Court of Appeals

of conspiracy were “ ‘vague, ‘conclusory, and ‘general, ” and

thus insufficient to state claims under Sections 1985(3) and 1986

as interpreted by this circuit.“

We agree fully with the district court’s treatment of appellant’s

Section 1983 claims, in particular with its analysis of McNary

and of the adequacy of appellant’s remedies under New York law.

566 F.Supp. at 488-93. Thus, with respect to these claims, we af-

firm on the opinion below.

[2] We also affirm the dismissal of appellant’s claims under

Section 1985(3), but we do so on a ground different from that

relied on by the district court. United Brotherhood of Carpenters

and Joiners v. Scott, ___U.S.____, 103 S.Ct. 3352, 3353, 77

L.Ed.2d 1049 (1983), decided since the decision below was

handed down, held quite explicitly that Section 1985(3) does not

“‘reach conspiracies motivated by bias towards others on account

of their economic views, status, or activities.’ Jd. at 3360 (em-

phasis in original) (nonunion construction company and em-

ployees had no action under Section 1985(3) against a regional

trade council, twenty-five local unions, and various individuals

for damages occurring from assault on employees and destruc-

tion of construction equipment at job site). If anything, this case

more obviously involves an economic class than United Brother-

hood. \n United Brotherhood the victims were attacked because

of their membership in a specific class of nonunion employers/

employees, while so far as appears here, if a class of taxpayers is

* 423 South Salina St. v. City of Syracuse, 566 F.Supp 484, 493 (N.D.N.Y. 1983)

(citing Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d

97, 107 (2d Cir. 1981); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977)).

A-53

Per Curiam Opinion of U.S. Court of Appeals

involved at all,’ it is more purely an economic class, i.e., down-

town property holders. Because the appellant has not made out a

claim of conspiracy within the meaning of Section 1985(3), it fol-

lows that his claim against the appellees under Section 1986, for

failure to prevent such conspiracy, must also be dismissed. 42

U.S.C. § 1986 (1976); Powell v. Kopman, 511 F.Supp. 700, 704

(S.D.N.Y. 1981); Slegeski v. Ilg, 395 FSupp. 1253, 1255-56

(D.Conn. 1975).

’ Paragraph 55 of the complaint makes allegations as to other downtown prop-

erty owners. The Appellate Division did suggest that downtown property

owrers were affected as a class:

It is not difficult to sort out the considerations at work here. The City’s

constitutional debt limit and the amount of important financial aid it re-

ceives are computed by the total assessed value of the real property in the

City. An important segment of any municipal assessment roll is the com-

mercial properties of its downtown shopping area. These properties not

only contribute high values to the assessment roll, but downtown prop-

erty owners represent a relatively innocuous part of the City constituency.

Thus, there is much to win and little to risk by keeping downtown assess-

ments high.

W.T. Grant Co. v. Srogi, 71 A.D.2d at 474, 423 N.Y.S.2d at 335, aff'd in rele-

vant part, §2 N.Y.2d 496, 420 N.E.2d 953, 438 N. Y.S.2d 761 (1981). But appel-

lant also suggests that the City especially wanted its property because it is a key

to a large development planned by the City, an allegation somewhat inconsistent

with the claim of a conspiracy against the class of downtown property holders.

A-54

Judgment Appealed From

COURT OF APPEALS

STATE OF NEW YORK

The Hon. Sol Wachtler, Chief Judge, Presiding

4 No. 399

423 South Salina Street, Inc.,

Appellant,

City of Syracuse, &c., et al.,

Respondents.

The appellant in the above entitled appeal appeared by

Mousaw, Vigdor, Reeves, Heilbronner and Kroll, Esqs.; the re-

spondents appeared by Hon. David M. Garber, Corporation

Counsel, City of Syracuse; and Hancock and Estabrook, Esqs.

The Court, after due deliberation, orders and adjudges that

the order is affirmed, with costs. Opinion by Judge Meyer. Chief

Judge Wachtler and Judges Simons, Alexander and Titone con-

cur. Judges Kaye and Hancock took no part.

The Court further orders that the papers required to be filed

and this record of the proceedings in this Court be remitted to the

Supreme Court, Onondaga County there to be proceeded upon

according to law.

I certify that the preceding contains a correct record of the pro-

ceedings in this appeal in the Court of Appeals and that the pa-

pers required to be filed are attached.

/s/

Donald M. Sheraw, Clerk of the Court

Court of Appeals, Clerk’s Office, Albany, November 20, 1986.

A-55

Notice of Appeal

STATE OF NEW YORK

COURT OF APPEALS

423 SOUTH SALINA STREET, INC., APPELLANT,

CITY OF SYRACUSE

METROPOLITAN DEVELOPMENT FOUNDATION OF

CENTRAL NEW YORK, INC.

AND AMLEA (NEW YORK), INC., APPELLEES

NO. 399

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that 423 South Salina Street, Inc., the

Appellant above-named, hereby appeals to the Supreme Court

of the United States from the final judgment of the court of Ap-

peals of the State of New York, affirming the dismissal of the

complaint against the City of Syracuse by reason of Appellant’s

failure to file a Notice of Claim pursuant to N.Y. General Munic-

ipal Law §§50-e and 50-i. Said judgment was entered in this

action on November 20, 1986.

This appeal is taken pursuant to 28 U.S.C. §1257(2).

Mousaw, Vigdor, Reeves,

Heilbronner & Kroll

Counsel for Appellant

600 First Federal Plaza

Rochester, New York 14614

(716) 325-2500

Filed: New York State Court of Appeals on January 20, 1987

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.