Matter of Donovan v Hauben
2012 NY Slip Op 31077(U)
April 16, 2012
Supreme Court, New York County
Docket Number: 111865/2011
Judge: Doris Ling-Cohan
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SUPREME COURT OF THE STATE O F NEW YORK
NEW YORK COUNTY
Index Number : 111865/2011
JUDGE WARREN P. HAUBEN
Sequence Number : 001
MOTlON SEQ NO.
The following papers, numbered 1 to
Notice of MotlonlOrdrr to Show Cause
, were read on thlr motion tolfor
-Affldavlta - Exhlblta
IN o (
IN O W .
a 1 . I . a
..................................................................... dCASE DISPOSED
2. CHECK AS APPROPRIATE: ...........................
MOTION IS: 0GRANTED
1. CHECK ONE:
3. CHECK IF APPROPRIATE:
0S E m E ORDER
DO NOT POST
0QRANTED IN PART
This judgment t a not been entered by the County Clerk
l To o
SUPREME COURT OF THE STATE OF NEW Y O ~ ~ p e r s o n ~ ~ ~ u d g n e n t ~ ~ ~
IAS PART 36
In the Matter of the Application of
Margaret L. Donovan The Twin Towers
COUNTY OF NEW YORK:
Index No. :
Motion Seq. No.:
001 & 0 0 2
-againstJudge Warren P. Hauben C h i e f Administrative
Law J u d g e NYC Tax Appeals Tribunal,
_ _ - _ _ _ - _ _ _ _ _ _ _ _ _ - _ _ _ _ I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
DORIS L I N G - C O W
Petitioner, acting p r o se, brings this Article 78 petition
after respondent Warren P. Hauben, Chief Administrative Law Judge
and the FOIL Appeals Officer of the New York City Tax Appeals
T r i b u n a l (Tax Appeals Tribunal), denied h e r Freedom of
Information Law ( F O I L ) request.l
Respondent moves, pursuant to
CPLR 3211 (a) (7) a n d 7804 (f), for an order dismissing the
BACKGROUND AND FJCI'UAL ALI,EC&I"I'ONS
Petitioner is t h e co-founder and co-director of The Twin
Towers Alliance, an entity formed in 2006 "to advance the public
interest at the World Trade Center site."
Petition, at 1:
Respondent notes that petitioner mistakenly named him as
respondent, when he was a c t i n g on behalf of the Tax Appeals
Tribunal, and that the T a x Appeals Tribunal, a s the agency, is
the appropriate respondent for this proceeding.
Petitioner claims that she is trying to uncover how the public is
allegedly being forced to pay for the building of t h e Freedom
I n 2009, petitioner sent a FOIL request to the Port
Authority seeking the â2001 Silverstein Leases and the 2006
Master Development Agreement.â
Apparently, petitioner did
not receive this information.
For some inexplicable reason, petitioner did not b r i n g any
proceeding against the Port Authority, to obtain such records.
Instead, petitioner brings this Article 78 proceeding against
respondent Tax Appeals Tribunal, as explained below.
Petitioner read a 2009 determination issued from t h e Tax
Appeals Tribunal in which the information she sought was p a r t of
that determination a n d attached as exhibits.
respondent, t h i s 2009 determination concerned the tax returns a n d
petitions filed by World Trade Center LLCs 1, 2, 3 and 4 (WTC
These petitions âprotested the Commissioner of
Financeâs assertion of deficiencies of Commercial Rent Tax
against the Petitioners.â
Petitionerâs Exhibit 1, at 1.
documents submitted by the WTC entities included leases and other
supporting materials which t h e Tax Appeals Tribunal deemed
necessary to determine whether the WTC entities were paying t h e
correct amount of Commercial Rent Tax owed to the C i t y of New
On May 16, 2011, petitioner submitted a FOIL request to t h e
Tax Appeals Tribunal seeking the documents attached as exhibits
to the 2009 determination, including the petition and t h e l e a s e s .
Petitioner was not a p a r t y to s u c h original 2009 determination.
Petitioner's request was denied.
On June 3, 2011, petitioner
appealed this denial.
On June 13, 2011, respondent denied the appeal.
letter to petitioner, respondent explained how the Tax Appeals
Tribunal is prohibited from distributing the materials to
petitioner under t h e tax secrecy provisions.
requested b y petitioner relate to t a x r e t u r n s which were
submitted pursuant to the Commercial R e n t Tax Law,
respondent, t h e l a w with respect to the Commercial Rent and
Occupancy Tax is contained in Chapter Seven of Title Eleven of
the Administrative Code of the City of New York.
Under the t a x
secrecy provisions, contained in Administrative Code 5 11-716
( a ) , the Tax Appeals Tribunal is prohibited from divulging
information relating to the business of a taxpayer contained in
any return required under [Chapter Seven]."
Respondent also cited to New York Public Officers Law
(2) (a), which allows agencies, such as the Tax Appeals Tribunal,
t o "deny access to records or portions thereof that: (a) are
specifically exempted from disclosure by s t a t e or federal
Section 11-716 of the Administrative Code is deemed a
State statute for purposes of New York Public O f f i c e r s Law 5 87.
See Administrative Code 5 11-716 (c).
Respondent acknowledged that, while petitioner s o u g h t
materials other than t a x returns, the additional documentation
she sought could not be disclosed since the documentation was
compiled b y the WTC entity taxpayers in support of their returns.
In h i s determination, respondent cited to M a t t e r of T a r t a n
O i l Corporation v S t a t e of N e w York D e p a r t m e n t of T a x a t i o n &
Finance (239 AD2d 36 [3d Dept 1 9 9 8 ] ) , in which the petitionerâs
F O I L request was denied.
In Matter of T a r t a n O i l Corporation,
s u p r a , the petitioner Tartan O i l Corporationâs (âTartanâ), a
landlord and gasoline distributor, was s e e k i n g records concerning
two tax audits of its commercial tenant and gasoline retailer;
petitioner Tartanâs FOIL request included documents, files,
hearing transcripts, and purchase invoices, among other things.
The respondent Record Appeals Officer denied the request, citing
New Y o r k Public O f f i c e r s Law 5 87 (2) ( a ) , and Tax Law
Tartan then commenced an Article 78 proceeding, in which
it claimed that âinasmuch as the statute relates solely to
returns and reports, it does not preclude the disclosure of t h e
records it: sought.â
Id. at 38.
The Appellate Division, Third
Department, has stated that while Tartanâs literal reading of the
statutory language is correct, \ \ a statute must be read in a
manner which furthers its o b j e c t , spirit and purpose.â
Court continued that a literal view of the s t a t u t o r y language
would defeat the purpose of the t a x secrecy statute.
Tax Law 5 1146 (a) mirrors Administrative Code 5 11-716.
concluded, "[cllearly this purpose would be thwarted if materials
and records compiled b y taxpayers in support of their returns a n d
reports were subject to disclosure to those who are not
statutorily deemed to have a legitimate interest in such
Id. at 38-39.
The Court concluded that the
records sought b y Tartan were included in the interpretation of
Tax Law 5 1146 (a), and that the respondent correctly denied the
In the present situation, after receiving respondent's
determination, petitioner requested an advisory opinion on the
matter from the Committee on Open Government (Committee). The
Committee, who forwarded its opinion to the Tax Appeals Tribunal,
as well as to three other agencies, did not believe Matter of
T a r t a n O i l C o r p o r a t i o n was applicable, since, among other
reasons, the contracts/leases that were requested were between
p r i v a t e entities and public ones such as the Port Authority.
Tax Appeals Tribunal responded to the opinion b y reiterating the
fact that the Tax Appeals Tribunal "is subject to tax secrecy
which strictly limit the information and documents
that the Tribunal may release to the public."
Exhibit 7, at 2.
The Tax Appeals Tribunal also explained that
any of its members would be s u b j e c t to dismissal and criminal
penalties if they divulged information relating to the business
of a taxpayer.
Petitioner then commenced this Article 78 proceeding.
Petitioner a r g u e s that respondent improperly d e n i e d her request
since she was seeking "contracts t h a t : belong in the public domain
and r e p r e s e n t billions of public dollars,"
Petition, at 4.
continues that the tax secrecy provisions do not apply to h e r
request, nor is the decision in Matter of T a r t a n O i l Corporation
applicable to the present situation.
She also claims that
"[plublic documents are not magically transformed into private
documents merely by inserting them into a hearing before an
Administrative Law Judge."
Petitioner concludes that the
respondent should follow the advice of the Committee.
Respondent contends that he properly denied petitioner's
F O I L request pursuant to t h e tax secrecy provisions, which were
established to "encourage a full and frank disclosure of the tax
status of a particular entity."
These m a t e r i a l s , a f t e r being submitted to the Tax Appeals
Tribunal, are protected from being released to the public.
Moreover, respondent argues that whether or not the documents are
with another agency, such as the Port Authority, or w h e t h e r they
were at some point public information is irrelevant, given that,
" [ a l t the Tax Appeals Tribunal, which is where the FOIL request
was made, the documents were never made public.''
Davidson R e p l y
In the context of an Article 78 proceeding, courts have held
that "a reviewing court is not entitled to interfere in the
exercise of discretion by an administrative agency unless there
is no rational basis f o r the exercise, or the action complained
of is arbitrary a n d capricious."
M a t t e r of S o h o Alliance v New
York S t a t e L i q u o r Authority, 3 2 A D 3 d 3 6 3 , 3 6 3 (1" Dept 2 0 0 6 ) ,
citing M a t t e r of Pel1 v B o a r d of E d u c . of Union Free School D i s t .
N o . 1 of Towns of S c a r s d a l e and Mamaroneck,
34 NY2d 2 2 2 ( 1 9 7 4 ) ; see CPLR 7 8 0 3 ( 3 ) .
Westchester C o u n t y ,
An agency's decision is
considered arbitrary if it is "without sound basis in reason and
M a t t e r of Pel1
is generally taken without regard to the f a c t s . ' '
v B o a r d of E d u c . of Union Free School D i s t . N o .
1 of Towns of
Scarsdale a n d Mamaroneck, Westchester County, 34 N Y 2 d at 231.
"It is w e l l settled that a court may not substitute its j u d g m e n t
for that of the board or body it reviews u n l e s s the decision
under review is arbitrary and unreasonable and constitutes an
abuse of discretion [internal quotation m a r k s a n d citations
M a t t e r of A r r o c h a v B o a r d of E d u c a t i o n of City of N e w
Y o r k , 93 N Y 2 d 361, 3 6 3 (1999).
M r n i n i s t r a t i v e Code 5 11-716 a n d Matter of Tqrtan
O i l
Petitioner argues that respondent improperly determined that
the tax secrecy provision applied to her FOIL request.
Petitioner believes that the contracts/leases that were a part of
a 2009 determination are not: private tax returns and have, in
some way, been available to the public f o r years before being
submitted to the Tax Appeals Tribunal.
She does not explain why
she did n o t pursue any other available remedies such as
following-up on her alleged F O I L request made to the Port
As explained by respondent, the Tax Appeals Tribunal relied
on Administrative Code 5 11-716 and New York Public O f f i c e r s Law
5 87 when issuing its determination to deny petitioner's FOIL
The records sought by petitioner included documents
used by the Tax Appeals Tribunal to determine whether the WTC
entities were paying an accurate amount of Commercial Rent Tax.
As previously explained, Administrative Code 5 11-716 prohibits
the Tax Appeals Tribunal from divulging any information relating
to the business of a taxpayer from a return subject to Chapter
Seven. As such, providing these records to the public, such as
petitioner who was not even a party with respect to the 2009
determination, would impair the confidentiality a n d privacy of
litigants who appear before the Tax Appeals Tribunal.
Matter of T a r t a n O i l C o r p o r a t i o n , contrary to petitioner's
belief, is controlling in this situation.
Division, First Department, has not s p o k e n on the issue.
such, the "doctrine of s t a r e decisis requires trial courts in
this department to follow precedents set by the Appellate
Division of anot ier department until the Court of Appeals or this
court p r o n o u n c e s a c o n t r a r y rule."
Mountain V i e w C o a c h Lines v
S t o r m s , 1 0 2 A D 2 d 663, 664 (2d Dept 1984).
In Matter of T a r t a n O i l Coxporation, the petitioner, similar
to the present situation, sought hearing exhibits which were part
of a tax audit.
The Court concluded t h a t , n o t o n l y tax returns,
but all materials compiled by taxpayers in support of their
returns, are shielded from public disclosure.
Such court made no
distinction based on whether the records requested were between
p r i v a t e or public entities, as argued by petitioner.
Likewise, here, petitioner cannot rely on the Committee's
advisory opinion as a basis for why this court s h o u l d disturb the
findings of the Tax Appeals Tribunal.
As respondent correctly
maintains, advisory opinions issued by the Committee are not
See M a t t e r of T J S of N e w Y o r k , Inc. v New
York S t a t e Department of T a x a t i o n & F i n a n c e , 09 A D 3 d 2 3 9 ,
footnote 1 (3d Dept 2011).
Moreover, contrary to petitioner's argument, K i n g v. Dillon,
an unreported Nassau County Supreme Court case (November 30,
1984), is not controlling herein.
While neither side has
submitted a copy of such decision to this court, based upon the
parties' submissions and arguments, it appears that t h e f a c t s of
K i n g v. D i l l o n are distinguishable, in that, unlike in this case,
the documents at issue there involved minutes of public meetings,
which were otherwise available to t h e p u b l i c , prior to being in
the possession of t h e District Attorney.
Further, such decision
was not rendered b y an appellate court.
As set forth above, by applying relevant statutes and case
law, respondent has provided a reasonable and rational
explanation for why it denied petitioner's FOIL request.
Accordingly, respondent's denial of petitioner's FOIL request
w i l l n o t be disturbed and the petition is dismissed.
The court has considered petitioner's other contentions and
finds them to be w i t h o u t merit.
Accordingly, it is hereby
ORDERED t h a t the respondent's
motion is granted; and it is
proceeding is dismissed; and it is further
ORDERED that within 30 d a y s of entry of this order,
respondent shall serve a copy upon petitioner, w i t h notice of
Dated: April 16, 2012
Doris Ling-Cohan, J.s c
This judgment has not been entered by the County Clerlr
and notice of entry cannot be served based hereon. mrcicle 78\Donovan v Judge HaubenJ~eth
obtain entry, counsel or authorized representative must
ar in person at the Judgment Clerk's Qesk (Room