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Mangano v. Silver

Supreme Court of New York, Second Department

June 26, 2013

Edward P. Mangano, etc., et al., respondents,
v.
Sheldon Silver, etc., et al., defendants, State of New York, et al., appellants. Index No. 14444/10

Eric T. Schneiderman, Attorney General, New York, N.Y. (Barbara D. Underwood, Cecelia C. Chang, and Claude S. Platton of counsel), for appellants State of New York, New York State Department of Taxation and Finance, Jamie Woodward, and Thomas DiNapoli.

Nixon Peabody LLP, New York, N.Y. (Abigail T. Reardon, Frank H. Penski, James B. Henly, Helene Fromm, and Peter Sistrom of counsel), for appellants Metropolitan Transportation Authority and Jay H. Walder.

John Ciampoli, County Attorney, Mineola, N.Y. (Dennis J. Saffran and David Tauster of counsel), and Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza of counsel), for respondents Edward P. Mangano, County of Nassau, County of Suffolk, Incorporated Village of Floral Park, Incorporated Village of Valley Stream, Incorporated Village of Mineola, Incorporated Village of New Hyde Park, Town of Monroe, Town of Chester, Town of Warwick, Town of Highlands, Town of Wawayanda, Town of Blooming Grove, Town of Crawford, Village of Highland Falls, Orange County Chamber of Commerce, Village of Woodbury, Village of Maybrook, Village of South Blooming Grove, Town of Woodbury, Town of Smithtown, and County of Putnam (one brief filed).

Robert F. Meehan, County Attorney, White Plains, N.Y. (Justin R. Adin of counsel), for respondent County of Westchester.

Colleran, O'Hara & Mills, LLP, Garden City, N.Y. (Denis A. Engel, Erin O. Brennan, Alicia M. Shotwell, and Thomas Keane of counsel), for amici curiae New York State AFL-CIO, Transportation Workers' Union Local 100, and New York State Transportation Workers' Union Conference.

MARK C. DILLON, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In a consolidated action, inter alia, for a judgment declaringthat Tax Law article 23 is unconstitutional, the defendants State of New York, New York State Department of Taxation and Finance, Jamie Woodward, and Thomas DiNapoli appeal, and the defendants Metropolitan Transportation Authority and Jay H. Walder separately appeal, (1) from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered August 23, 2012, as granted the motion of the plaintiffs Edward P. Mangano and County of Nassau, and the separate motions of each of the plaintiffs County of Suffolk, County of Westchester, Town of Smithtown, and County of Putnam for summary judgment on the complaint to the extent of declaring that Tax Law article 23 is unconstitutional, and denied those branches of their separate cross motions which were for summary judgment declaring that Tax Law article 23 is constitutional, and (2), as limited by their briefs, from so much of a judgment of the same court entered October 1, 2012, as, upon the order, declared that Tax Law article 23 is unconstitutional.

ORDERED that the appeals from the order entered August 23, 2012, are dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, the motion of the plaintiffs Edward P. Mangano and County of Nassau, and the separate motions of each of the plaintiffs County of Suffolk, County of Westchester, Town of Smithtown, and County of Putnam for summary judgment on the complaint are denied, those branches of the cross motions which were for summary judgment declaring that Tax Law article 23 is constitutional are granted, the order entered August 23, 2012, is modified accordingly, and it is declared that Tax Law article 23 is constitutional; and it is further,

ORDERED that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.

The appeals from the intermediate order entered August 23, 2012, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment on October 1, 2012 (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeals from the order are brought up for review and have been considered on the appeals from the judgment (see CPLR 5501[a][1]).

The defendant Metropolitan Transportation Authority (hereinafter the MTA) is a public benefit corporation created under Public Authorities Law article 5 for the purpose of "the continuance, further development and improvement of commuter transportation and other services related thereto within the metropolitan commuter transportation district" (hereinafter the MCTD) (Public Authorities Law § 1264[1]), which embraces the City of New York and the counties of Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester (see Public Authorities Law § 1262).

In 2009, the New York State Legislature passed the Metropolitan Commuter Transportation Mobility Tax Law (hereinafter the MTA Employer Tax Law), enacted as Chapter 25, Part C, of article 23 of the Laws of 2009 and codified at Article 23 of the Tax Law. The tax was imposed on employers and self-employed individuals "[f]or the sole purpose of providing an additional stable and reliable dedicated funding source for the [MTA] and its subsidiaries and affiliates to preserve, operate and improve essential transit and transportation services in the [MCTD]" (Tax Law § 801[a]).

In 2010, the plaintiffs commenced this action seeking a judgment declaring, inter alia, that the MTA Employer Tax Law is unconstitutional. The plaintiffs Edward P. Mangano and County of Nassau moved, and the plaintiffs County of Suffolk, County of Westchester, Town of Smithtown, and County of Putnam each separately moved, for summary judgment on the complaint. The Supreme Court granted the motion, concluding that the MTA Employer Tax Law was ...


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