Matter of Town of North Hempstead v County of Nassau
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Matter of Town of North Hempstead v County of Nassau 2011 NY Slip Op 32266(U) August 11, 2011 Supreme Court, Nassau County Docket Number: 6734/11 Judge: Anthony L. Parga Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - -------- - -------------- --- -- -- - - - - --- ----- --- ----- --- - - - - -- - -- - - - -- ---- --........................................... '''''''''''''''''''''''''''''''''''..................... )( ---------- -- - ---- - -- -- --------- - - -- --- - - -- --- ----- --- - ----- )( [* 1] SHORT FORM ORDER SUPREME COURT- NEW YORK STATE- NASSAU COUNTY PRESENT: HON. ANTHONY L. PARGA JUSTICE In the Matter of the Application of the PART 8 TOWN OF NORTH HEMPSTEAD INDE)( NO. : 6734/1 J Plaintiff- Petitioner For a Judgment Pursuant to Sections 2001 and Article 78 of the Civil Practice Law and Rules MOTION DATE: 07/01/1 SEQUENCE NO. 001 -against- COUNTY OF NASSAU Defendant- Respondent. Notice of Petition , Petition , Affs & Exs"""""""'''''''''''''''''''''''''.......................... Verified Answer and Ob iection , Affs & E Reply Affi rrn a ti 0 n....................................... ................... Upon the foregoing papers , the application by Petitioner Town of North Hempstead (hereinafter " Town), pursuant to CPLR 93001 and Article 78 of the CPLR directing and compelling the County of Nassau (hereinafter " 448 625. , for ajudgment (i) County ) to pay the Town , said sum representing the Town s share of the County-collected sales tax for the fourth quarter of the fiscal year 2010; (ii) for an order declaring the County mandated sales tax revenue from the Town illegal s withholding of , arbitrary, and capricious , and without legal authority; (iii) declaring the County s attempted olfset of claimed community college and Fashion Institute of Technology (hereinafter " FIT" ) charge backs against statutorily mandated sales tax revenue , illegal , arbitrary, and capricious , and without legal authority; (iv) declaring that the County is without authority to charge back the Town for FIT expenses it incurs , and further [* 2] declaring such charge back ilegal , arbitrary, and capricious , and without legal authority; and (v) declaring that the County is without authority to charge back the Town for FIT expenses it incurs for out of County students pursuant to the New York State Education Law, and declaring such charge back ilegal , arbitrary, and capricious , and without legal authority; is determined as follows. The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court. In this application , the Town is alleging that the County is withholding $2 448 625. 00 due to the Town for the Town s share of the County-collected sales tax for the fourth quarter of the fiscal year 2010. It is undisputed by the parties that the Town s share of the County-collected sales tax for the fourth quarter of2010 is $2 448 625. 00. The Town alleges that the County improperly withholding said funds due to an offset of Fashion Institute of Technology (" FIT" charge backs , in the amount of $1 174 462. , and an offset of other community college charge backs , in the amount of $601 482.27 , which the County claims is due and owing from the Town. Education Law 96305(5) provides that the County has the statutory authority to charge back its cities and towns for the costs incurred by the County from paying charge- backs assessed against the County under 96305(2) for its residents attending out-of- County community colleges. Pursuant to Education Law 96305(2), a community college may charge to and collect from each home county the allocable cost of the home county s students attending such out-of-county community college. Pursuant to 6305(5), the County may then charge back such amounts , in whole or in part , to the cities and towns within the County for the number of students attending each such community college who were residents of each city or town. The purpose of the charge backs is to " insure that counties of non-resident students share in the cost incurred in operating a community college , for any nonresident students who are ' attending such community college.''' (Fulton-Montgomery CommunUy College Y.S.2d 702 (2d Dept. 2010), quoting v. County of Saratoga 80 A.D. 3d 217 912 Education Law 96305(2)). In 2003 , the Nassau County Legislature (by Resolution 368- 2003 , approved on December , 2003) authorized the County Treasurer to charge back to the towns and cities in the county, the amounts paid by the County to out-of-county community colleges. Subsequent to the [* 3] adoption of said resolution , the County began charging back to the cities and towns for community colleges in general. It was not until 2011 , however , that the County began to charge its cities and towns for County residents attending FIT , beginning with FIT charge- backs for the fiscal year 2010. The Town contends that FIT is not a community college as defined by Education Law 96303 , and , accordingly, the County cannot charge back the Town for the amounts paid to FIT by the County for Town resident-students. The Town argues that when the Education Law was adopted in 1948 , FIT offered only two year programs consistent with the statutory definition of a community college. In 1975 , however , FIT began offering four- year degrees in multiple disciplines and , in 1979 , began offering Masters Degree programs. As such , the Town argues that FIT ceased being a " community college " as defined by the Education Law. The Town also argues that the County Legislature s Resolution Number 368- 2003 did not authorize the County Treasurer to charge back to the citics and towns the amounts paid by the County to FIT. Further , in 1994 , Education Law 96305 was amended to add subsection 10. Section 6305(10) of the Education Law provided that the State shall reimburse each county which has issued a certificate of residence for any non-resident student in attendance at FIT. In 2001 , however , the appropriation bil proposed by the governor and passed by the legislature effectively eliminated such funding from the state budget. D.3d 1010 (See , Matter ( lCounty olS' uffolk v. King, J 8 794 N. Y.S. 2d 695 (2d Dept. 2005)). The Town contends that 96305(10) expressly separated FIT from the conventional community colleges for the purposes of County charge back authority. In its objections to the Town s petition , the County contends that FIT is a " community college " within the meaning of the Education Law , including 96305' s charge-back scheme , and as such , the County is entitled to charge back payments for the costs incurred on behalf of the Town s residents attending FIT. In addition , the County contends that the County Legislature December 18 , 2003 Resolution number 368- 2003 authorized the County Treasurer , pursuant to 96305 , to charge back to the cities and towns of Nassau County the amounts payable by the County to out-of- County community colleges for County residents attending those out-of- County community colleges. The County argues that the Resolution covers all community colleges ," [* 4] including FIT , which , by statutory definition is a community college. The County also argues that if FIT was not a community college under the Education Law , it would not be able to charge the County for non-resident students attending FIT. FIT is only afforded the statutory authority to charge the County for its students attending FIT pursuant to Education Law 96305. The County also contends that Education Law 96305 does not require implementation by the local legislative body in order for the County to charge its cities and towns for their residents attending FIT. The Town s argument that FIT is not a community college , as contemplated by the Education Law , is without merit. Education Law 96301(2) defines a community college as a college " providing two- year post secondary programs pursuant to regulations prescribed by the state university trustees and receiving financial assistance from the state therefor. " Education Law 96303(1) states that " community colleges shall provide two- year programs of post high school nature combining general education with technical education relating to the occupational needs of the community, area , or community college region in which the college is located and those of the state and the nation generally. " Education Law 96302(3) states , however , that community colleges in New York City, where FIT is located , may olfer baccalaureate and masters degrees , and " shall be financed and administered in the manner provided for community colleges. In addition , Education Law 92587 , entitled Tenure in fashion institute of technology, provides that "' Community College ' shall mean fashion institute of technology, a community college sponsored by the board of education of the City of New York. " Further , the courts have repeatedly held that FIT is a community college. " FIT is anomalous among community colleges in that it offers baccalaureate and Master s degree programs in addition to twoyear programs but in all other relevant statutory respects is like all other community colleges. (Mostaghim v. Fashion Institute afTechnology, 2001 WL 1537544 (S. community college , albeit an unusual one 1049 502 N. Y.S. 2d 928 (Ct. of Claims 1986); See also , Amato Y. 2001)(holding that " FIT is a v. State af New York 131 Misc. Jackson v. Ed afEducation 30 A.D. 3d 57 , 812 Y.S. 2d 91 (lSI Dept. 2006)). As Education Law 9 630 1 (2) and 6303(1) specificaJJy state that community colJeges shall ); ); [* 5] provide " two- year programs " the Court finds that the charge backs authorized by Education Law 96305(5) shall be limited to the amounts paid by the County to FIT for Town-resident students enrolled in the two year education programs and those seeking two- year Associate Degrees. Lastly, as a municipality may utilize the remedy of setoff against its debtor , the County (See, US. may offset the amount owed to it by the Town from the sales tax due to the Town. Mune5Y Trust Co. 332 U. S. 234 , 67 S. Ct. 1599 (I 947)(" the government has the same right which belongs to every creditor , to apply the unappropriated moneys of his debotr , in his hands in extinguishment of the debts due to him. Morash v. State of New York 268 A. 2d 510 , 703 N. Y.S. 2d 55 (2d Dept. 2000)("the State Comptroller has the common- law right of setoff in order to collect a debt owed to the State even where the State s claim has not been reduced to judgment or whent the setoff is unrelated to the State s debt to the claimant" Dept. lTax and Finance Canale 84 Misc.2d 786 , 378 N. Y.S. 2d 566(Ct. of Claims 1975); v. New York State See also 1988 N. Y. St. Compt. Opinion 88- 42). Accordingly, pursuant to Education Law 996301 6302 6303 , and 6305 , as well as the case law cited (1 ) supra this Court declares and orders the following: That FIT is a " community college " as contemplated by Education Law 630l , 6302 , 6303 , and 6305; (2) That , pursuant to Education Law 9 630l(2), 6302(3), 6303(1) and 6305(5), the County is entitled to charge back to the Town the amount paid by the County to FIT for Town residents enrolled in two year education programs and those seeking two-year Associate Degrees; (3) That the undisputed amount of $672 680. , representing the balance due from the County to the Town for the sales tax distribution for the fourth quarer of the fiscal year 2010 , shall be paid by the County to the Town within thirty (30) days following the date of this order; (4) That the County may retain the remainder of the sales tax due and owing to the Town for the fOUl1h quar1er of the fiscal year 2010 , in the amount of 775 944. , pending a determination of the total amount due and owing from the Town for community college charge backs and FIT Associate Degrees and two year education charge backs; (5) That the County shall determine the amount due and owing to it from the Town for community college charge backs for Town residents for the fiscal year 2010 and part of the fiscal year 2009 , and for FIT Associate [* 6] Degrees and two year education charge backs for Town residents for the fiscal year 2010 , within sixty (60) days ofthis order; and (6) That the County may offset the amount due and owing to it for the abovenoted charge- backs from the remainder of the $1 775 944. 87 due to the Town for the Town s share of the collected sales tax for the fourth quarter of the fiscal year 2010. This constitutes the decision and order of this Court. Dated: August 11 , 2011 Cc: Richard S. Finkel , Esq. Town Attorney Town of North Hempstead 220 Plandome Road O. Box 3000 Manhasset , NY 11030 John Ciampoli Nassau County Attorney Attn: Ralph J. Reissman , Esq. Nassau County Executive Building One West Street Mineola , NY 11501 ENTERED AU6 15 2011 NASSAU COUNTY COUNY CLER. S OFFtCE
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