Falk v Nassau County

Annotate this Case

Download PDF

Falk v Nassau County 2018 NY Slip Op 33861(U) January 17, 2018 Supreme Court, Nassau County Docket Number: 600868/17 Judge: Jeffrey S. Brown Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NASSAU COUNTY CLERK 01/23/2018 11:15 AM NYSCEF DOC. NO. 29 INDEX NO. 600868/2017 0: RECEIVED NYSCEF: 01/23/2018 " --'i: SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE SEN T : HON. JEFFREY S. BROWN JUSTICE ---~--~-~~-~-----------------------------------~~----~---------------------)( TIlIA~/IAS PAIlT 12 JEFFREY P. FA~K, on behalf of himself and all other similarly situated, INDEX # 600868/17 Plaintiffs, -againstMot. Seq'. 2 Mot. Date 12.4.17 NASSAU COUNTY and NASSAU COUNTY Submit Date 12.20.17 DEP AIlTMENT OF ASSESSMENTS, Defendants. --------------------~-------~-----------------~~~-~--~-------~------------~)( ===================================================================== The following papers were read on this motion: E File Docs Numbered Notice of Motion, Affidavits (Affirmations), Exhibits Annexed Answering Affidavits (Affirmations) Reply Affidavit. ~ , . . . 18,21 25 27 ===================================================================== Motion by plaintiff pursuant to CPLR 2211(d) for leave to reargue the court's order of September 27, 2017, which denied in part and granted in part defendant's motion to dismiss. This action arises out of plaintiffs claims that defendant Nassau County and the Nassau County Department of Assessments have charged an excessive fee and unlawful tax pursuant to Section 6-33.0 of the Nassau County Administrative Code~ Pursuant to this section, a tax map certification letter (TMCL) must be purchased and filed with various real property documents presented for recording at the Nassau County Clerk. Plaintiff contends that the fees extracted are for general revenue purposes and, therefore, constitute an unlawful tax. By its earlier decision and order, the court sustained plaintiffs claim for declaratory and prospective injunctive relief under CPLR 3001, but dismissed the plaintiff s claims for disgorgement or restitution and those sounding in unjust enrichment, conversion, and "monies had and received" for failure to allege involuntary payment. In dismissing the claims for disgorgement or restitution of.the collected fee, ,the courtrejected plaintiff s argument that the -1- 1 of 4 [*FILED: 2] NASSAU COUNTY CLERK 01/23/2018 11:15 AM NYSCEF DOC. NO. 29 INDEX NO. 600868/2017 RECEIVED NYSCEF: 01/23/2018 payments were made involuntarily under circumstances amounting to duress or coercion. Plaintiff does not quibble with the court's determination in this regard. Rather, the gravamen of plaintiff's argument is that his payment of the challenged fee was made through his title agent, who was reimbursed for that fee and others by way of an invoice that did not itemize charges that were paid for specific services and fees. Accordingly, plaintiff contends that he never knew of the payment of the TMCL fee. Plaintiff alleges that because he was unaware of the nature of the TMCL fee at the time of its payment, payment was made under a mistake of fact based on a lack of knowledge, and no protest was required. In support of this position, plaintiff submits a copy of the title agent's invoice, which, although not submitted on the prior motion, does not alter this court's prior determination. A motion to reargue is addressed to the discretion of the court and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law. (CPLR 2221 [d] [2]; see Haque v. Daddazio, 84 AD3d 940 [2d Dept 2011]). It is not designed as a vehicle to afford the unsuccessful party with successive opportunities to argue once again the very questions previously decided. (Ahmed v. Pannone, 116 AD3d 802 [2d Dept. 2014]; Gellert & Rodner v. Gem Community Mgt., Inc., 20 AD3d 388 [2d Dept 2005]). Nor is it designed to provide an opportunity for a party to advance arguments different from those originally tendered. (V Veeraswamy Realty v. Yenom Corp., 71 AD3d 874 [2d Dept 2010]; Amato v. Lord & Taylor, Inc., 10 AD3d 374, 375 [2d Dept. 2004]) or argue a new theory of law or raise new questions not previously advanced (Haque, 84 AD 3d 940). Instead, the movant must demonstrate the matters of fact or law that he or she believes the court has misapprehended or overlooked. (Hoffmann v. Debello-Teheny, 27 AD3d 743 [2d Dept 2006]). Absent a showing of misapprehension or the overlooking of a fact, the court must deny the motion. (Barrett v. Jeannot, 18 AD3d 679 [2d Dept 2005]). The cases cited by the plaintiff do not support his argument that payment under these circumstances can amount to a mistake of fact. In Kessler v.Herklotz, 190 NY 24 [1907], the plaintiff mistakenly made an unauthorized payment to defendant on behalf of third party at the direction of yet another party. The court determined that there was a question of fact as to whether the message directing payment misled the plaintiff, explaining that the critical inquiry was "whether it was under any material mistake of fact that the plaintiffs were induced to make the payment, for the mistake must be of a material fact to entitle the plaintiffs to relief." Here, there is no claim that the plaintiff was affirmatively misled into making the payment in question. Further, plaintiff cites Gimbel Brothers, Inc. v. Brook Shopping Centers, Inc., 118 AD2d 532 [2d Dept 1986] as a comparator case. In that case, lessee Gimbel Bros. made a number of "Sunday charge" rental payments not required by its lease agreement. Plaintiff points to the court's notation that invoices clearly indicated the Sunday charge but plaintiff fails to acknowledge that the totality of the evidence in that case showed that no mistake could be claimed, including testimony that disputed payments were made with full knowledge while the matter was being investigated. -2- 2 of 4 [*FILED: 3] NASSAU COUNTY CLERK 01/23/2018 11:15 AM NYSCEF DOC. NO. 29 INDEX NO. 600868/2017 RECEIVED NYSCEF: 01/23/2018 Most significantly, plaintiff cites Genesee Brewing Company, Inc. v. Village a/Sodus Point, 126 Misc.2d 827 [Sup. Ct. Wayne County 1984]. In Genesee Brewing, the plaintiff made certain industrial cost recovery payments (ICR) to the Village of Sodus Point during a moratorium period of the federal law requiring such payments. Upon repeal of the federal law, the plaintiff sought restitution of those ICR payments. The court found that the protest requirement was not applicable because the law in question waS not adjudicated invalid but instead was repealed by legislative action. However, the court noted the general rule that "the voluntary payment of a tax or fee may not be recovered, and when payment is made ... by a person :with actual or constructive knowledge of the facts which render an assessment void, it is incumbent upon such person to demonstrate that payment was made involuntarily." (Genesee Brewing, at 833-834 [emphasis added]; citing City a/Rochester v. Chiarella, 58 NY2d 316 [1983]). "Constructive knowledge" is the "[k]nowledge that one using reasonable care or diligence should have, and therefore is attributed by law to a given person." (Black's Law Dictionary 876 [7th ed. 1999]). Here, plaintiff has not shown that his ignorance regarding the breakdown of fees paid by his title agent can constitute a legally cognizable mistake of fact. The complaint, amplified by the plaintiff s motion papers, contains no allegation that the County in some way concealed the subject fees from the plaintiff or his agent or,that the infor~ation was not otherwise readily available. Moreover, to the extent that the cases cited by the plaintiff do not pertain to tax payments made to a municipality for general use, the court reiterates the,reasoning set forth in Chiarella that: Recognizing that all governmental assessments are, in a sense, paid involuntarily, the determination is primarily one of degree,' turning upon numerous factors, including: "[T]he right of the . taxing authorities to rely on objection ifthere be resistance to payment, the likelihood that authentic resistance will be asserted" the unavoidable drastic impact of the taxes or fees on the claimant, and the impact on the public fisc, if revenues raised long ago and expended are subject to reimbursement" (Paramo?1ni Film Distr. Corp. v. State a/New York, 30 N.Y.2d 415,420,334 N.Y.S.2d 388,285 N.E.2d 695, cert. den. 4f4U.S. 829,94 S.Ct. 57,'38 L.Ed.2d 64). (Chiarella, 58 NY2d at 323-324). -3- 3 of 4 [*FILED: 4] NASSAU COUNTY CLERK 01/23/2018 11:15 AM NYSCEF DOC. NO. 29 INDEX NO. 600868/2017 RECEIVED NYSCEF: 01/23/2018 The court has considered the plaintiff s remaining contentions and finds them to be without merit. For the foregoing reasonS, it is hereby I ORDERED, that the plaintiffs motion for leave to reargue is granted, and upon reargument, the court adheres to its prior determination granting in part defendant's motion and dismissing plaintiff s claim for injunctive relief in the form of disgorgement and the second, third, and fourth causes of action. This constitutes the decision and order of this court. All applications not specifically addressed herein are denied. Dated: Mineola, New York January 17,2018 FFREY S. BROWN l.S.C. Attorneys for Plaintiff McLaughlin & Stern, LLP 260 Madison Avenue, 15th Floor New York, NY 10016 212-448-1100 wwilkinson@mclaughlinstern.com ENTERED JAN 23 2018 . NASSAU COUNTY COUNTY CLERK'S OFFICE Attorn~ys for Defendants Carnell T. Foskey Nassau County Attorney Andrew R. Scott, Deputy CountY Attorney One West Street Mineola, NY 11501 516-571-3056 5165 716604@fax.nycourts.gov -4- 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.