[DOWNLOAD] "Matter Building Contractors Association v. James H. Tully" by Supreme Court of New York * eBook PDF Kindle ePub Free
eBook details
- Title: Matter Building Contractors Association v. James H. Tully
- Author : Supreme Court of New York
- Release Date : January 28, 1978
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 75 KB
Description
Although labeled a CPLR article 78 proceeding, an examination of the petition discloses that petitioners are actually challenging the validity of respondents regulation (20 NYCRR 527.7 [b] [2]), and an information letter interpreting certain provisions of the Tax Law (§ 1105, subd [c], pars [3], [5]) which they maintain are inapplicable to their business activities. Since no final determination of tax liability on account of such operations has been rendered, it is plain that certiorari review is inappropriate, and petitioners have not alleged any other basis for potential CPLR article 78 relief. However, the declaratory relief they seek is available in an action for declaratory judgment because it is their basic contention that the taxing statute, by its very terms, does not apply to the services they perform and, under these circumstances, it is unnecessary for petitioners to first exhaust their administrative remedies (Slater v Gallman, 38 N.Y.2d 1; Richfield Oil Corp. v City of Syracuse, 287 NY 235; Troy Towers Redev. Co. v City of Troy, 51 A.D.2d 173; Matter of Hospital Tel. Systems v New York State Tax Comm., 41 A.D.2d 576). We, therefore, conclude that the unusual and extraordinary features of this case, including the recent change in respondents construction of the statute in question (see Matter of Sheppard-Pollak, Inc. v Tully, 64 A.D.2d 296), make it an appropriate one for declaratory relief and we convert the proceeding into such an action (CPLR 103, subd [c]; Socony-Vacuum Oil Co. v City of New York, 247 App Div 163, affd 272 NY 668).