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James Square Associates Lp, Mohawk v. Dennis Mullen

November 18, 2011

JAMES SQUARE ASSOCIATES LP, MOHAWK
GLEN ASSOCIATES, LLC, PIONEER FULTON SHOPPING CENTER, LLC,
PIONEER MANAGEMENT GROUP, LLC,
AND WATERFRONT ASSOCIATES, LLC, PLAINTIFFS-RESPONDENTS, AND
v.
DENNIS MULLEN, COMMISSIONER, NEW YORK STATE DEPARTMENT OF ECONOMIC DEVELOPMENT, AND
JAMIE WOODWARD, COMMISSIONER,
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE,
DEFENDANTS-APPELLANTS.



Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.), entered February 9, 2011.

The opinion of the court was delivered by: Green, J.

James Sq. Assoc. LP v Mullen

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 18, 2011

PRESENT: CENTRA, J.P., FAHEY, GREEN, AND GORSKI, JJ.

OPINION

(APPEAL NO. 2.)

The order and judgment granted the motion of defendants for leave to renew and, upon renewal, adhered to the court's order and judgment entered June 22, 2010, and further declared that the August 11, 2010 "clarification" of the 2009 amendments to the Empire Zones Program is, as applied to plaintiffs, an unconstitutional taking of plaintiffs' property.

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Opinion by Green, J.: Plaintiffs are business enterprises that at one time were certified as eligible to receive benefits pursuant to the New York State Empire Zones Act ([Empire Zones Act] General Municipal Law § 955 et seq.). In April 2009, as part of the 2009-2010 budget legislation, the Governor signed into law amendments to the Empire Zones Act that altered certain eligibility criteria for business enterprises and directed defendant Commissioner of the New York State Department of Economic Development (DED Commissioner) to conduct a review of all business enterprises receiving benefits (see § 959 [a] [5], [6]; [w]). As the result of that review, the DED Commissioner revoked the certification of each plaintiff, effective January 1, 2008. We agree with defendants that the Legislature intended that the pertinent 2009 amendments to the Empire Zones Act would apply retroactively to January 1, 2008. We agree with plaintiffs and Supreme Court, however, that such retroactive application unconstitutionally deprived plaintiffs of their property interests without due process.

I

In 1986 the Legislature enacted the Empire Zones Act "to stimulate private investment, private business development and job creation" in economically impoverished areas (General Municipal Law § 956). Toward that end, the State offered certain incentives to encourage the development of new businesses and the expansion of existing businesses in such economically impoverished areas, designated as Empire zones (see id.; § 957 [d]). Those incentives include various tax credits for investment and job creation (see e.g. Tax Law § 606 [j], [j-1], [k], [l]; § 1456 [d], [o], [p]), which are available to business enterprises that the DED Commissioner has certified as eligible to receive such benefits (see General Municipal Law § 959 [a]). Prior to the 2009 amendments, the DED Commissioner was authorized to revoke the ...


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