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AMERICAN COMMUTERS ASSN., INC. v. LEVITT

December 19, 1967

AMERICAN COMMUTERS ASSOCIATION, Inc., Luis A. Gallop, and Julian S. Herz, its co-chairmen, Deborah Christman by her father and guardian ad litem, the plaintiff Luis A. Gallop, Marian E. Herz, by her father and guardian ad litem, the plaintiff Julian S. Herz, William S. Diefenbach, Bert Silbert and Lewis Smith, Plaintiffs,
v.
Arthur LEVITT, Individually and as Comptroller of the State of New York et al., Defendants


Bonsal, District Judge.


The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

Plaintiffs move for an order pursuant to 28 U.S.C. §§ 2281 and 2284 convening a three-judge court, and defendants Mario A. Procaccino, individually and as Comptroller of the City of New York; Roy M. Goodman, individually and as Director of Finance of the City of New York; other officials of the City of New York; the members of the New York City Board of Higher Education; and the members of the New York City Board of Education, move for an order pursuant to Rule 12(b), F.R.Civ.P., dismissing plaintiffs' complaint. *fn1" Plaintiffs' motion is denied and defendants' motion to dismiss plaintiffs' complaint is granted.

 Plaintiff, American Commuters Association, Inc. (the Association), is a New Jersey corporation with some 1800 members who are residents of New Jersey or Connecticut and who earn all, or substantially all, their income in New York State. The individual plaintiffs, including Luis A. Gallop and Julian S. Herz, co-chairmen of the Association, earn all, or substantially all, their income in New York State.

 In addition to the defendants named above, the other defendants are Arthur Levitt, individually and as Comptroller of the State of New York; Joseph M. Murphy, individually and as Commissioner of Taxation and Finance of the State of New York; James E. Allen, Jr., individually and as Commissioner of Education of the State of New York and as President of the University of the State of New York; the Chancellor and Vice Chancellor of the University of the State of New York; other officials of the State of New York; the members of the New York State Board of Regents; and the members of the New York State Board of Social Welfare.

 Plaintiffs sue on their own behalf and on behalf of others similarly situated, seeking:

 1) an injunction against enforcement by the defendants of provisions of the following statutes (the challenged statutes): New York Conservation Law, New York Education Law, New York Mental Hygiene Law, New York Private Housing Finance Law, New York Public Housing Law, New York Social Services Law (the challenged statutes conferring benefits), New York Tax Law and New York City Administrative Code;

 2) a declaratory judgment that the provisions of the New York Tax Law, McKinney's Consol.Laws, c. 60, (§§ 631-637), imposing a State income tax on nonresidents, and the provisions of the New York City Administrative Code (§§ U46-1.0 -- U46-52.0), imposing a City income tax on nonresidents (the challenged statutes imposing taxes), are unconstitutional; and,

 3) a declaratory judgment that provisions of the challenged statutes conferring benefits *fn2" are unconstitutional. Plaintiffs contend that this court has jurisdiction under 28 U.S.C. § 1331(a) and § 1343(3) on the grounds that:

 1) the matter in controversy exceeds $10,000 and arises under the Constitution of the United States; and,

 2) defendants have deprived plaintiffs of their civil rights under color of State law and City ordinance in violation of 42 U.S.C. § 1983.

 In their complaint, plaintiffs allege:

 1) that the defendants Levitt, Murphy and members of the State Tax Commission collect from the plaintiffs and members of the Association the same amount in State income taxes as they collect from residents of New York;

 2) that the defendants Procaccino, Goodman and other tax officials of New York City collect City income taxes from the plaintiffs and members of the Association under the New York City Administrative Code; and,

 3) that the remaining defendants deny to plaintiffs, other members of the Association and other nonresident commuters most of the benefits which, under the challenged statutes conferring benefits, the State and City of New York provide with the money collected in taxes, and that during the five fiscal years, April 1, 1962 to March 31, 1967, the defendants and their predecessors, acting under color of State statutes, ...


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