author: Per Curiam.

text:
    In the Matter of County of Oneida, et al., Respondents, v Peter A. Berle, Individually and as Commissioner of the Department of Environmental Conservation of the State of New York, et al., Appellants.
    Argued February 13, 1980;
    decided April 1, 1980

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Joseph J. Micare and Shirley Adelson Siegel of counsel), for appellants.
    I. Charged with responsibility to help maintain a balanced budget throughout the State’s fiscal year, the Director of the Budget had the authority to withhold payment from appropriations where payment was not mandated by law. The Budget Director’s approval was necessary before this appropriation could be paid. (Wein v State of New York, 39 NY2d 136; Saxton v Carey, 44 NY2d 545; Hidley v Rockefeller, 28 NY2d 439; Matter of Levine v Whalen, 39 NY2d 510; People ex rel. Devery v Coler, 173 NY 103; People ex rel. Canajoharie Nat. Bank v Board of Supervisors of Montgomery County, 67 NY 109; County of Seneca v State of New York, 292 NY 501; Starling Realty Corp. v State of New York, 286 NY 272; Matter of Antonopoulou v Beame, 32 NY2d 126; Train v City of New York, 420 US 35.) II. Section 7 of article VII prohibits payments from appropriations more than two years after passage. The orders of the courts below that the appropriations not be allowed to lapse are, therefore, a nullity. (County of Seneca v State of New York, 292 NY 501; Saratoga Harness Racing Assn. v Agriculture & N. Y. State Horse Breeding Dev. Fund, 22 NY2d 119; Matter of Clark v Sheldon, 106 NY 104; People ex rel. Evans v Chapin, 101 NY 682; Metropolitan Transp. Auth. v County of Nassau, 28 NY2d 385; Lehigh Val. R. R. Co. v Canal Bd., 204 NY 471; People v Westchester County Nat. Bank of Peekskill, N. Y., 231 NY 465.)

      Donald E. Keinz, County Attorney (Rocco S. Mascaro of counsel), for County of Oneida, respondent.
    I. Unless authorized by the Legislature, there exists no authority on the part of the executive branch to impound appropriated funds. (Wein v State of New York, 39 NY2d 136; People v Tremaine, 281 NY 1.) II. Lapse of appropriation should not render moot the existing controversy. (Southern Pacific Term. Co. v Interstate Commerce Comm., 219 US 498; Matter of Baumann & Sons Buses v Board of Educ., 46 NY2d 1061.)

      Robert J. Rossi, County Attorney (John R. Voninski of counsel), for County of Onondaga, respondent.
    I. The Legislature did not intend to confer upon appellant State officials the statutory power to unilaterally impound a portion of the sewage treatment appropriations under ECL 17-1905, but rather intended and mandated that municipalities be reimbursed for all qualifying expenditures up to a maximum of 3316%. (Matter of Levine v Whalen, 39 NY2d 510; Matter of Thomas v Board of Stds. & Appeals of City of N. Y., 263 App Div 352, 290 NY 109; New York Public Interest Research Group v Carey, 86 Misc 2d 329, 55 AD2d 274, 41 NY2d 1072; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Redfield v Melton, 57 AD2d 491; Dur-Bar Realty Co. v City of Utica, 57 AD2d 51, 44 NY2d 1002; Holmes v New York City Housing Auth., 398 F2d 262; City of Santa Clara v Kleppe, 418 F Supp 1243.) II. The executive branch does not have the inherent constitutional power to impound duly enacted legislative appropriations. (Ball v State of New York, 41 NY2d 617; Saxton v Carey, 44 NY2d 545; Matter of Smiley, 36 NY2d 433; People v Tremaine, 252 NY 27; Clark v State of New York, 142 NY 101; New York Public Interest Research Group v Carey, 86 Misc 2d 329; Novak v Town of Poughkeepsie, 57 Misc 2d 927; Major v Waverly & Ogden, 7 NY2d 332; Wein v Carey, 41 NY2d 498; Wein v State of New York, 39 NY2d 136.) III. The State may not invoke constitutional and statutory lapse provisions in defense of its own wrongful act.

      Louis A. Haremski for County of Erie and others, respondents.
    I. Appellant State officials lacked authority to withhold payment of funds lawfully appropriated by the Legislature. (Matter of Friedman v D’Antoni, 50 AD2d 9, 41 NY2d 1004; Ball v State of New York, 41 NY2d 617; New York State Thruway Auth. v Hurd, 25 NY2d 150; Erie County v Whalen, 57 AD2d 281, 44 NY2d 817; Youngstown Co. v Sawyer, 343 US 579; Community Action Programs Executive Directors Assn. of N. J. v Ash, 365 F Supp 1355; Campaign Clean Water v Ruckelshaus, 361 F Supp 689, revd on other grounds sub nom. Campaign Clean Water v Train, 489 F2d 492, 420 US 136; National Council of Community Mental Health Centers v Weinberger, 361 F Supp 897; Local 2677, Amer. Federation of Govt. Employees v Phillips, 358 F Supp 60.) II. Appellants have not properly raised a challenge to the validity of the direction against a lapse in the order of the courts below; their attempt to do so is barred by failure to raise the constitutional question in the courts below, by express stipulation of counsel and by necessity to resort to matters outside the record. (Martin v Home Bank, 160 NY 190; Matter of Lefkowitz v Cohen, 286 NY 499; Persky v Bank of Amer. Nat. Assn., 261 NY 212; Wright v Wright, 226 NY 578; Telaro v Telaro, 25
      NY2d 433; Matter of Anderson, 178 NY 416; Nod-Away Co. v Carroll, 240 NY 252; Purdy v Erie R. R. Co., 162 NY 42; Delaney v Brett, 51 NY 78; Di Bella v Di Bella, 47 NY2d 828.)

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan, Stephen P. Kramer and Nancy Stassinopoulos of counsel), for City of New York, amicus curiae.

    The executive has no constitutional authority, and has been given no statutory authority, to withhold for budgetary purposes funds appropriated by the Legislature. (Matter of Cornwall v Diamond, 39 AD2d 762; Matter of Picone v Commissioner of Licenses of City of N. Y., 241 NY 157; American Inst. for Imported Steel v Office of Gen. Servs. of State of N. Y., 47 AD2d 118, 38 NY2d 991; American Inst. for Imported Steel v County of Erie, 32 AD2d 231; State Highway Comm. of Mo. v Volpe, 479 F2d 1099; Guadamuz v Ash, 368 F Supp 1233; Train v City of New York, 420 US 35; Matter of Friedman v D’Antoni, 50 AD2d 9, 41 NY2d 1004; Kennedy v Sampson, 511 F2d 430; People v Tremaine, 252 NY 27.)
   OPINION OF THE COURT

Per Curiam.

At point is whether the State Director of the Budget, acting as agent of the Governor, may refuse to spend $7 million appropriated by the Legislature to aid municipalities in operating and maintaining sewage treatment works. Responding to the issue, it is held that no authority inheres in the Governor under the State Constitution to impound funds appropriated by law and that the instant appropriation statute conferred no discretionary authority upon the Director of the Budget to disapprove otherwise proper.expenditures.

In this consolidated proceeding, petitioners, local municipalities and their representatives, assert that they have improperly been denied State reimbursement for the operation and maintenance of sewage treatment works. Specifically, they urge that the Budget Director, invoking an inherence of authority allegedly reposed in the Governor, illegally impounded $7 million out of $26 million appropriated by the Legislature for State fiscal year 1976-1977. In the executive budget for that fiscal year, the Governor recommended a $12 million appropriation for the sewage works reimbursement program. During the budgetary process, the Legislature added $14 million to the recommendation and passed a total appropriation of $26 million. Although the Governor possesses item veto power over appropriation measures (NY Const, art IV, § 7), he chose not to exercise it, and approved the bill presented to him by the Legislature.

Nonetheless, the Director of the Budget decided, apparently in early October, 1976, "to reduce the allocations made by the State for the maintenance and operation of local sewage treatment systems.” By letter dated October 7, 1976, the director explained that his "action in this matter is one instance of a necessarily comprehensive effort to tighten State spending.” Stated simply, then, the director refused to expend, or impounded, $7 million of the total appropriation. Special Term, while praising the endeavor to attain fiscal responsibility, held that the executive impoundment constituted an invasion of the legislative domain. A unanimous Appellate Division affirmed, on the opinion of Special Term.

On this appeal, the Budget Director, as well as the remaining respondents, points to no express provision of the Constitution empowering the Governor to refuse to expend appropriated funds. Rather, he offers a dual justification for his action. The director urges that the Governor, as the Chief Executive Officer of the State, has an obligation to maintain a balanced budget throughout the fiscal year and, to accomplish that goal, possesses implied constitutional power to reduce duly enacted appropriations. Alternatively, respondents maintain that the appropriation statute invested the director with discretionary authority to withhold funds designated for the sewage treatment aid program. These arguments are rejected.

The constitutional argument, while simple, is fatally flawed. It is true, as respondents maintain, that opinions of this court have recognized the Governor’s constitutional obligation to propose a balanced budget (Wein v State of New York, 39 NY2d 136, 141; see Wein v Carey, 41 NY2d 498, 503). But at no time has the court suggested that, once a budget plan is enacted, revenues and expenditures must match throughout the fiscal year. At any isolated point in time in the spending year, there must, as a practical matter, be some gap between the two. Recognizing this reality, the court has but recently disclaimed any obligation on the part of the State to maintain a balanced budget. "[I]t is unattainable for any budget plan, perfectly and honestly balanced in advance, to remain in balance to the end of the fiscal year. There must * * * in every year be either a deficit or a surplus” (Wein v Carey, supra, at p 504). Thus, respondent’s premise is untenable.

Given the absence of an obligation to maintain a balanced budget, the constitutional argument falters. For if the executive branch is under no duty to reduce expenditures or raise revenues in order to retain an equilibrium as the year progresses, it can hardly possess implied power unilaterally to "reduce” a lawful appropriation. It is not possible to speak of the necessity for implying power to perform a nonexistent duty.

Nor would the implication of executive power to impound funds be consistent with our constitutional form of government. Our State Constitution establishes a system in which governmental powers are distributed among three co-ordinate and coequal branches (see NY Const, art III, § 1; art IV, § 1; art VI; Matter of Nicholas v Kahn, 47 NY2d 24, 30; Saxton v Carey, 44 NY2d 545). Extended analysis is not needed to detail the dangers of upsetting the delicate balance of power existing among the three, for history teaches that a foundation of free government is imperiled when any one of the coordinate branches absorbs or interferes with another. "It is not merely for convenience in the transaction of business that they are kept separate by the Constitution, but for the preservation of liberty itself, which is ended by the union of the three functions in one man, or in one body of men. It is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others” (People ex rel. Burby v Howland, 155 NY 270, 282; see Matter of Nicholas v Kahn, supra, at pp 30-31).

In budgetary matters, the essential process is detailed by the Constitution, and the role of each branch distinctly treated. To simplify, the Governor, as Chief Executive Officer of the State, is obligated to submit a complete budget plan to the Legislature for its consideration (NY Const, art VII, § 2; Saxton v Carey, 44 NY2d 545, 549, supra). The Legislature then reviews the budget and may take various actions depending upon the nature of the appropriation (NY Const, art VII, § 4). When the Legislature adds an item of appropriation, that addition is subject to executive approval (NY Const, art VII, § 4). And the Governor possesses line veto power over appropriation measures (NY Const, art IV, § 7). If the Governor declines to exercise the line veto, and instead approves the bill, the bill of course becomes law (NY Const, art IV, § 7).

Here, the Legislature added $14 million to the Governor’s recommendation for the sewage treatment works reimbursement program. As a legislative addition, the $14 million was subject to executive veto. The Governor elected to approve the measure, however, and it became law. A duly enacted statute, "once passed, cannot be changed or varied according to the whim or caprice of any officer, board or individual. It remains fixed until repealed or amended by the Legislature” (Schumer v Caplin, 241 NY 346, 351). Simply, the laws and policies of the State are established by the lawmaking powers, not by "officers acting solely on their own ideas of sound public policy, however excellent such ideas may be” (Matter of Picone v Commissioner of Licenses of City of N. Y., 241 NY 157, 162). Once the appropriation was approved, therefore, the Governor and his subordinates were duty bound "to take care that [it was] faithfully executed” (NY Const, art IV, § 3).

However laudable its goals, the executive branch may not override enactments which have emerged from the lawmaking process. It is required to implement policy declarations of the Legislature, unless vetoed or judicially invalidated. This the executive failed to do. The Budget Director’s "order does not direct that a [legislative] policy be executed in a manner prescribed by” the Legislature; rather, "it directs that [an executive] policy be executed in a manner prescribed by the [executive]” (Youngstown Co. v Sawyer, 343 US 579, 588). Such a usurpation of the legislative function cannot receive judicial sanction.

This is not to say that the separation of powers doctrine creates a "captious, doctrinaire and inelastic classification of governmental functions” (People v Tremaine, 252 NY 27, 39 [Pound, J.]). True, there are areas in which the responsibilities of the three great branches of government overlap or intersect, and in which powers cannot be immutably fixed. But it cannot be denied that a principal function of the executive is to carry out the laws of the State, whether embodied in statutory or other form. A failure to fulfill this obligation violates the unequivocal command of the Constitution — it is not subject to academic debate concerning the proper division of governmental powers.

From a fiscal standpoint, it may be desirable to attempt to maintain revenues and expenditures in rough balance throughout the year. And it is not suggested that State government is powerless to do so by appropriate and constitutional means. The issue of what steps, if any, may be properly taken is a question not now before the court, and upon which no opinion need be expressed. It must be recognized, however, that the desire to maintain a balanced budget does not furnish an occasion for the exercise of an extraordinary power which does not otherwise constitutionally exist.

Finally, contrary to respondents’ contention, the appropriation did not confer unfettered discretion upon the director to withhold all or any portion of the appropriation. Such a legislative delegation would be drastic indeed, and may not be inferred from ambiguous language. This is especially so in instances where the Legislature has provided no guidelines for the exercise of discretion (cf. Matter of Levine v Whalen, 39 NY2d 510, 515-516). The appropriation at issue, couched in mandatory terms, does not yield the interpretation respondents would place upon it. Indeed, it provides that "the moneys hereby appropriated shall be available * * * and shall be apportioned” (emphasis added). Although the appropriation does contain the words "as approved by the director of the budget”, that language requires only that the regulations apportioning the funds be subject to prior approval.

In sum, under the State Constitution, the executive possesses no express or inherent power — based upon its view of sound fiscal policy — to impound funds which have been appropriated by the Legislature.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified to the extent of converting this article 78 proceeding into an action seeking declaratory relief, and entering judgment in favor of petitioners declaring that the impoundment of $7 million of the appropriation described in this opinion was unconstitutional, and, as so modified, the order should be affirmed, with costs to petitioner.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order, insofar as appealed from, modified, with costs to petitioners, in accordance with the opinion herein and, as so modified, affirmed.

      . The State assistance program was governed by ECL 17-1905 (subd 2) which, at the time, provided in pertinent part: "Within the limits of the annual appropriation made by the legislature, the commissioner shall apportion and approve for payment state assistance to each municipality which, by itself or in cooperation with one or more other municipalities or other governments, operates and maintains or is responsible for the payment of expenses for operation and maintenance of sewage treatment works during all or part of a fiscal year of such municipality, in accordance with qualifications for state assistance applicable to the operation and maintenance of such works. * * * Such state assistance, when apportioned among the municipalities applying, shall be for not more than one-third of the amount approved by the commissioner as having been duly expended by the municipality for such operation and maintenance during each of the three successive fiscal years of the municipality beginning with its fiscal year commencing on or after June 1, 1974. Such state assistance shall be paid on account of such expenditures after the termination of the fiscal year of the municipality”. The statute has since been amended (L 1978, ch 688, § 1; L 1977, ch 68, § 1), but the amendment is not at issue.

      . Petitioners also challenged the Commissioner of Environmental Conservation’s manner of allocating available funds, contending that it discriminated against towns and counties while favoring large cities. Both Supreme Court and the Appellate Division agreed with petitioners’ position, and respondents do not now appeal from that determination. Accordingly, no opinion is expressed as to the propriety of the rates established by the commissioner.

      . The appropriation expressly stated that: "The moneys hereby appropriated shall be available for payment of state aid heretofore accrued or hereafter to accrue to municipalities pursuant to the environmental conservation law and the public health law and shall be apportioned in accordance with regulations promulgated by the commissioner of environmental conservation and as approved by the director of the budget.” (L 1976, ch 53.)

      .  Respondents contend, apparently for the first time on this appeal, that the appropriation has lapsed by operation of law (see NY Const, art VII, § 7, which provides that "[n]o money shall ever be paid out of the state treasury * * * except in pursuance of an appropriation by law * * * within two years next after the passage of such appropriation act”). Whatever the merit of this position, upon which we express no opinion, it can no longer be said that respondents are under a legal duty which is "so clear as not to admit of reasonable doubt or controversy” (Matter of Burr v Voorhis, 229 NY 382, 387). It follows that mandamus would no longer be an appropriate remedy (see id.) and this proceeding is therefore converted into a declaratory judgment action (CPLR 103, subd [c]; see Group House of Port Washington v Board of Zoning & Appeals of Town of North Hempstead, 45 NY2d 266, 271).

      . Even assuming the existence of a requirement that the budget remain in balance, which does not exist, respondents offer no explanation as to why this obligation would fall solely on the Governor, rather than being shared by the Legislature and the executive.

      . Although certainly not dispositive of the proper interpretation of the New York Constitution, Federal courts have rebuffed claims that the Federal Constitution invests the president with inherent power to impound lawful appropriations (e.g., Guadamuz v Ash, 368 F Supp 1233; Community Action Program Executive Directors Assn, of N. J. v Ash, 365 F Supp 1355; National Council of Community Mental Health Centers v Weinberger, 361 F Supp 897; see, also, Train v City of New York, 420 US 35; Note, 1975 Wis L Rev 203).


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    In the Matter of Aldens, Inc., Appellant, v James H. Tully, Jr., et al., Respondents.
    Argued February 4, 1980;
    decided March 25, 1980

      POINTS OF COUNSEL

      Ralph S. Snyder, of the Pennsylvania Bar, admitted on motion pro hac vice, and Joseph H. Murphy for appellant.
    I. Nothing in the relevant New York taxation statutes requires appellant to collect the use tax of any locality in which it maintains no place of business and with which its sole contact is by the mail and common carrier. (Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of Limousine Rental Serv. v Feinberg, 9 AD2d 986; National Bellas Hess v Department of Revenue, 386 US 753.) II. Both the due process clause of the Fourteenth Amendment and the commerce clause of the Federal Constitution prohibit the imposition upon appellant of a duty to collect use taxes for localities with which appellant’s only contact is through the mails and common carrier, as part of a general interstate business. (National Geographic v California Equalization Bd., 430 US 551; Henneford v Mason Co., 300 US 577; Monomotor Oil Co. v Johnson, 292 US 86; National Bellas Hess v Department of Revenue, 386 US 753; Memphis Steam Laundry v Stone, 342 US 389; Nippert v Richmond, 327 US 416; Robbins v Shelby Taxing Dist., 120 US 489; McGoldrick v Berwind-White Co., 309 US 33; McLeod v Dilworth Co., 322 US 327; Miller Bros. Co. v Maryland, 347 US 340.) III. Even if the relevant taxation statutes were now construed to constitutionally impose upon appellant the obligation to collect local use taxes, the due process clause of the Federal Constitution prohibits the imposition of retroactive liability for prior uncollected tax. (Connally v General Constr. Co., 269 US 385; People v Scott, 26 NY2d 286; People v Colozzo, 54 Misc 2d 687, 32 AD2d 927; Jordan v De George, 341 US 223; Fleuti v Rosenberg, 302 F2d 652.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and Lawrence J. Logan of counsel), for respondents.
    I. The State of New York may constitutionally impose on petitioner the duty to collect use taxes on merchandise sold by petitioner and delivered to purchasers in the State of New York, although petitioner has no presence in the particular local jurisdictions for whose benefit the use taxes are collected. (Miller Bros. Co. v Maryland, 347 US 340; Monomotor Oil Co. v Johnson, 292 US 86; Felt & Tarrant Co. v Gallagher, 306 US 62; Nelson v Sears, Roebuck & Co., 312 US 359; Nelson v Montgomery Ward, 312 US 373; General Trading Co. v Tax Comm., 322 US 335; Scripto v Carson, 362 US 207; National

      Bellas Hess v Department of Revenue, 386 US 753; National Geographic v California Equalization Bd., 430 US 551; Wisconsin v J. C. Penney Co., 311 US 435.) II. The Tax Law requires all "vendors” such as petitioner to collect applicable local sales and use taxes at the same time State sales or use taxes are collected. III. Petitioner’s obligation to collect the local use tax is clearly spelled out in the statute and for its failure to do so, it is obligated for the payment thereof.
   OPINION OF THE COURT

Jones, J.

When a foreign mail-order business corporation is licensed to do business within the State and, through a wholly owned subsidiary, maintains offices and employees doing business at four different localities in the State, it is neither an undue burden on it in violation of the commerce clause of the Constitution of the United States nor a deprivation of its right to due process for the State to require the corporation to collect local, as distinguished from State, use taxes on goods sold and delivered by it to purchasers at every locality within the State, despite the fact its only contact with such locality is by mail and common carrier.

Petitioner, an Illinois corporation engaged principally in a mail-order merchandise sales business, brought this article 78 proceeding to review a determination by the State Tax Commission imposing liability on it for the collection and remittal of local sales and use taxes on all sales of goods to customers within New York State between August 1, 1965 and November 30, 1969. Its petition alleged that during the period in question it had been engaged in a mail-order business in all 50 States of the United States as well as in foreign countries or territories with its main offices and warehouses in the State of Illinois. Petitioner had made a wide distribution of catalogs by mail throughout these areas; using blanks included in the catalogs customers mailed their orders to the Illinois offices where the orders were accepted and filled, either by direct mail or by common carriers. Petitioner did not sell or offer for sale in New York any merchandise through its employees or salesmen. A wholly owned subsidiary of petitioner organized under the laws of Indiana and maintaining its principal offices in Illinois, Alden Catalog Offices, Inc., had four telephone offices in New York, one each in New York City and the Counties of Monroe, Erie and Onondaga, with a total of 29 employees. The function of these offices was to receive telephone orders for catalog items from customers. Subsidiary duties of employees at the four offices included telephone solicitation of orders made from the several offices and receipt of orders from persons who might come to the offices personally. All such orders were forwarded to petitioner’s Illinois headquarters for acceptance. Employees at these offices engaged in no sales activities outside the offices. The telephone number and location of each of the offices were listed in the telephone directory serving the area in which it was located, including the "Yellow Pages” of such directory, but no listing was included in any directory serving metropolitan areas other than those in which the offices were located. The subsidiary had no other business locations or employees of any kind in the State.

For the period in question petitioner duly collected and paid to the Sales Tax Bureau of the State Department of Taxation and Finance the State sales and compensating use taxes on all sales to customers located anywhere within the State as well as local sales and use taxes imposed on sales to customers located in Erie, Monroe and Onondaga Counties and in New York City, the areas where the subsidiary, Alden Catalog Offices, Inc., maintained offices. On March 5, 1970 the Sales Tax Bureau notified petitioner that there were use taxes due for the period in question which, with penalties and interest, totaled $93,902.06. This assessment was predicated on petitioner’s failure to collect and remit to the bureau local use taxes on goods sold to customers in areas within the State in which such local taxes were imposed other than the four areas in which offices of Alden Catalog Offices, Inc., were located. Following petitioner’s request for a review and reversal of the Sales Tax Bureau’s determination by the State Tax Commission the parties entered into a stipulation of the facts recited above, after which, on August 16, 1977, the commission issued its determination that the deficiencies had been properly determined by the bureau.

In the present article 78 proceeding, in which petitioner has thus far been unsuccessful, it urges three arguments — one statutory and two constitutional — in support of its demand for annulment of determinations which have held it liable for collection and remittal to the Sales Tax Bureau of local use taxes on items sold by mail order to customers in areas in which neither it nor its subsidiary maintained any business office or employees. First, it asserts that although it was required by the provisions of article 28 and 29 of the Tax Law to collect State use taxes on goods sold to customers anywhere in the State and to collect local use taxes on goods sold to customers in the four tax units in which its subsidiary had its offices, nothing in the statute imposed on it a corollary duty to collect local taxes with respect to sales made within the State but outside those four areas. Next, it contends that if the Tax Law be found to have imposed such a duty, it both places an undue burden on interstate commerce and also violates the due process clause of the United States Constitution. Finally, petitioner argues that if the Tax Law is construed constitutionally to impose on it the obligation to collect local use taxes, the due process clause prohibits the imposition of retroactive liability for prior uncollected taxes.

We turn first to the question whether there is statutory authority for requiring petitioner to collect the challenged local use taxes. Article 28 of the Tax Law adopted in 1965 provided for the imposition of State sales and use taxes (§§ 1105, 1106, 1110) setting out exemptions and the details of administration of the taxes so imposed (L 1965, ch 93). Article 29, simultaneously enacted, defined the authority of cities, counties and school districts to impose or to have imposed for their benefit a variety of local taxes. Included in this article was a provision empowering cities and most counties within the State by local law, ordinance or resolution to impose sales and use taxes "identical, except as to rate and except as otherwise provided herein, with the corresponding provisions in such article twenty-eight, including the definition and exemption provisions of such article, so far as the provisions of such article twenty-eight can be made applicable to the taxes imposed by such city or county and with such limitations and special provisions as are set forth in this article” (§ 1210, subd [a], par [1]). The section expressly provided that such local taxes were to be "administered, collected and distributed by the state tax commission”, in which had been vested the authority for implementation and enforcement of the State sales and use taxes.

With respect to initial collection of the local taxes authorized by article 29, subdivision (a) of section 1254 provided: "Every person required to collect tax, as defined in section eleven hundred thirty-one, who is required to collect any state tax imposed under sections eleven hundred five, eleven hundred six or eleven hundred ten, shall at the same time collect any applicable tax imposed by a city, county or school district under the authority of sections twelve hundred ten”. Looking then, as one must, to subdivision (1) of section 1131 (within art 28) for the definition of "Persons required to collect tax”, one finds such persons to be "every vendor of tangible personal property or services”. Insofar as relevant to our present considerations, "vendor” was in turn defined by section 1101 (subd [b], par [8], cl [i], subcls [B], [C]) of article 28 as

"(B) A person maintaining a place of business in the state and making sales, whether at such place of business or elsewhere, to persons within the state of tangible personal property or services, the use of which is taxed by this article;

"(C) A person who solicits business either by employees, independent contractors, agents or other representatives or by distribution of catalogs or other advertising matter and by reason thereof makes sales to persons within the state of tangible personal property or services, the use of which is taxed by this article”.

It remains only to retrace the steps through the statutory sections just recited to conclude that petitioner was a "vendor” under section 1101 (subd [b], par [8]) by reason of its maintenance of four places of business in the State and its solicitation of business through its employees there (its subsidiary’s four offices and their employees’ activities), that as a "vendor” it was a "person required to collect tax” under subdivision (1) of section 1131 and that, in view of its uncontroverted duty to collect State taxes on sales made to all its customers located within the State, it was required by subdivision (a) of section 1254 also to collect local use taxes on the items which were the subject of those sales.

In refutation of this logical progression petitioner urges that, when liability for collection of local use taxes is at issue, the language of section 1101 (subd [b], par [8]) must be judicially edited so that in place of reference in subclause (B) to maintaining a place of business "in the state” the provision must be read as maintaining a place of business "within the local taxing unit”, and that to the reference in subclause (C) to soliciting business there must be added a limitation to "within the specific locality of the local taxes”. However, no justification for such rewriting of the statutory provisions is to be found in the language or design of article 29, the article treating local taxes. Moreover, the alterations for which petitioner contends would substantially undermine the manifest purpose of the Legislature to have a single governmental agency — the State Tax Commission — serve as administrator of sales and use tax collections, be they State or local taxes. In the case of property purchased by mail by a customer in a city or county with which the seller’s only contact was by mail and common carrier, each local taxing body would have to maintain its own use tax collection and enforcement bureau with the expenses incidental thereto, and the likelihood of success in such collection — necessarily from the buyer on the basis of individual sales — would be substantially diminished, for, as has been noted with respect to a use tax, "the impracticality of its collection from the multitude of individual purchasers is obvious” (National Geographic v California Equalization Bd., 430 US 551, 555). Nor is any reason advanced for imposing a heavier collection burden on a domestic corporation which is located only in a single county of the State (but which concededly must collect use taxes on all deliveries anywhere within the State) than on a foreign corporation which is located within but a single county (here four counties) within the State.

We reject petitioner’s attempt to find statutory authority for the position it espouses in the use of the apparently tautological language in subdivision (a) of section 1254 — "Every person required to collect tax, as defined in section eleven hundred thirty-one, who is required to collect any state tax imposed under sections eleven hundred five, eleven hundred six or eleven hundred ten”. With nothing more than what we regard as a duplication of expression to support its argument, and with language readily available to the Legislature, were it so disposed, clearly to have limited the obligation of collection as petitioner would have it, we cannot accept the hypothesis that subdivision (a) of section 1254 sets up two qualifications which must be met before the obligation to collect local taxes befalls —i.e., that the person under consideration be independently required to collect the local tax (a requirement that petitioner contends could be met only by fulfillment of the definition of "vendor” with the concept of locality substituted for the language "in the state”) as well as being required to collect any State sales or use tax.

We also reject petitioner’s reliance on the inclusion in section 1210 of the Tax Law, following the authorization for local enactment of all taxes described in article 28 in form identical to the article 28 taxes, of the words "so far as the provisions of such article twenty-eight can be made applicable to the taxes imposed by such city or county” as indicative that the adaptations of the statutory term "vendor” for which it argues are mandated by the statute. The language quoted clearly was pertinent to the substance of the taxes themselves and their imposition and was made necessary by the fact that the taxes thereby authorized for local enactment were described only by general reference to the preceding article of the statute. In view of the inclusion of section 1254, dealing expressly with collection of local taxes adopted pursuant to article 29, and its specificity, there is no occasion to modify that section by reason of the provision contained in section 1210 relevant to the substance of the taxes.

We therefore conclude that there was no error in the determination by the State Tax Commission and the courts below that petitioner was required by subdivision (a) of section 1254 of the Tax Law to collect and remit local use taxes on goods sold to customers within the State but outside the taxing units in which petitioner maintained a place of business.

Next to be addressed is the contention that the statute as so construed unreasonably burdens interstate commerce and deprives petitioner of its right to due process in contravention of the United States Constitution. It should be noted at the outset that petitioner raises no challenge to the power of local authorities that have enacted sales taxes to impose compensating use taxes on goods bought outside the taxing area, recognizing the decision in National Geographic v California Equalization Bd. (430 US 551, supra) and cases cited therein as authority for the existence of such power. It relies however on National Bellas Hess v Department of Revenue (386 US 753) and an extrapolation it would draw therefrom in support of its request for reversal of the order below. The case last cited, addressing claims of violation of due process and creation of an unconstitutional burden on interstate commerce advanced by an out-of-State mail-order seller resisting a statutory obligation to collect State use taxes on the items of its sales, summarized the law as follows: "These two claims are closely related. For the test whether a particular state exaction is such as to invade the exclusive authority of Congress to regulate trade between the States, and the test for a State’s compliance with the requirements of due process in this area are similar. See Central R. Co. v. Pennsylvania, 370 U. S. 607, 621-622 (concurring opinion of MR. JUSTICE BLACK). As to the former, the Court has held that 'State taxation falling on interstate commerce . . . can only be justified as designed to make such commerce bear a fair share of the cost of the local government whose protection it enjoys.’ Freeman v. Hewit, 329 U. S. 249, 253. See also Greyhound Lines v. Mealey, 334 U. S. 653, 663; Northwestern Cement Co. v. Minnesota, 358 U. S. 450, 462. And in determining whether a state tax falls within the confines of the Due Process Clause, the Court has said that the 'simple but controlling question is whether the state has given anything for which it can ask return.’ Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444. See also Standard Oil Co. v. Peck, 342 U. S. 382; Ott v. Mississippi Barge Line, 336 U. S. 169, 174. The same principles have been held applicable in determining the power of a State to impose the burdens of collecting use taxes upon interstate sales. Here, too, the Constitution requires 'some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ Miller Bros. Co. v. Maryland, 347 U. S. 340, 344-345; Scripto, Inc. v. Carson, 362 U. S. 207, 210-211. See also American Oil Co. v. Neill, 380 U. S. 451, 458.” (386 US 756-757.) The court then concluded that, because the out-of-State seller’s only connection with buyers in the State was by mail or by common carrier, the required nexus to permit the State’s imposition of the burden of collection of its use tax was not present.

Petitioner argues by wishful extrapolation that the imposition of the duty of collection of all local use taxes within the State on a seller which is located only in particular counties within the State and whose only connection with buyers in other local tax areas is by mail or by common carrier is similarly infirm. However, simply because there are constitutional limitations on the burdens which may be placed on interstate commerce it does not follow, nor is there any precedent for holding, that that burden is to be measured by further compartmentalization of each State into its municipal subdivisions. No historical predicate is advanced to indicate that in assuring protection of commerce among the several States, any such intrastate partitioning was contemplated, and petitioner cites no Supreme Court case so holding. The cases in that court dealing with the obligation of collection of use taxes have all dealt with State, rather than local, taxes (e.g., Scripto v Carson, 362 US 207; General Trading Co. v Tax Comm., 322 US 335; Nelson v Sears, Roebuck & Co., 312 US 359).

In pleading for a nexus between the out-of-State seller and each local tax area as a necessary predicate for the imposition of tax collection liability petitioner overlooks what is a significant, indeed decisive, fact in the situation presented by this case — namely, that the obligation for petitioner’s collection of local use taxes has been imposed by State, not local, action, i.e., the enactment by our State Legislature of subdivision (a) of section 1254 of the Tax Law. Indeed, the levies of the local use taxes were themselves only a product of enabling State action, without which they would have been ineffective and invalid. In the adoption and imposition of local use taxes, cities and counties exercise a power vested in the State, only to the extent and within the limits the State has seen fit to delegate such authority to them. With respect to collection of the use taxes which local governmental bodies may elect to assess, the State Legislature has seen fit not to delegate, but has itself directed that the obligation for collection shall rest on those who qualify as vendors under section 1101 (subd [b], par [8]) of the Tax Law — for present purposes, sellers who maintain a place of business in the State and make sales to persons within the State. The legislation by which this was accomplished is no less the State’s imposition of a duty than is its imposition on such vendors of a duty to collect the State use tax levied by section 1110 of the Tax Law.

That being so, the only question appropriately to be raised is whether petitioner’s activities within the State "adequately establish a relationship or 'nexus’ between the [petitioner] and the State” such that the obligations imposed are not unconstitutional (National Geographic v California Equalization Bd., 430 US 551, 556, supra). There can be no real doubt as to this issue. The National Geographic case found a sufficient nexus on a showing no stronger than that demonstrated by the present record. There the out-of-State seller’s maintenance of two offices within the State for solicitation of advertising for its magazine was adequate for its subjection to use tax collection duty with respect to items of mail-order sales made to customers within the State of California; here petitioner’s subsidiary’s maintenance of four offices with 29 employees for receipt, and some solicitation, of telephone orders can be no less adequate. For the privilege of doing business in the State thus enjoyed by petitioner, the State may ask a return in the form of tax collection. Indeed, petitioner has not contended otherwise but frankly admits that it has at all times during the period in question complied with the obligation imposed on it to collect State use taxes. The State is no less entitled to require its collection of use taxes enacted by cities and counties pursuant to the State’s delegated authority.

Finally, we find without merit petitioner’s claim that if the relevant Tax Law provisions are now construed constitutionally to impose upon it the obligation to collect local use taxes, the due process clause of the Federal Constitution prohibits the imposition of retroactive liability for prior uncollected taxes. In support of this claim it is apparently suggested that the State Tax Commission was obligated at some time prior to the Sales Tax Bureau’s determination on March 5, 1970 to advise petitioner of its collection obligation. No statutory or decisional support for such a proposition is tendered, and lacking any such tender we decline to recognize such an affirmative obligation on this governmental agency. We are confronted with no more than the delayed enforcement of a collection obligation which petitioner chose to ignore. Insofar as petitioner seeks to find support in the alleged fact — not a part of the stipulation between the parties —that the Tax Commission promulgated a Model County or City Sales and Use Tax Resolution which employed the word "County” as the place of doing business of one described as a "vendor”, it need only be observed that the commission is without authority, by promulgation of such material or in any other way, to amend or to contravene the unambiguous language of the statute; nor, of course, may it be foreclosed on any theory of estoppel.

The order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . Although the administrative determinations spoke collectively of the obligation to collect sales and use taxes, only the collection of use taxes is actually involved in this case. There is no contention that any sales — as distinguished from delivery of goods in fulfillment of sales completed at petitioner’s Illinois offices — were made in New York.

      . (US Const, art I, § 8.)

      . (US Const, 14th Arndt, § 1.)


text:
    In the Matter of National Elevator Industry, Inc., et al., Respondents, v New York State Tax Commission, Appellant.
    Argued February 11, 1980;
    decided March 27, 1980

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Nigel G. Wright and Shirley Adelson Siegel of counsel), for appellant.
    I. The regulation and declaratory ruling are valid. The State Tax Commission was not estopped by its prior informal ruling from construing the statute in a manner plainly consistent with its terms. Legislative re-enactment does not wed an agency to prior informal rulings. (Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Matter of Roosevelt Raceway v County of Nassau, 18 NY2d 30; Matter of Allied Chem. Corp. v Kowal, 9 AD2d 121, 8 NY2d 730; People ex rel. Best & Co. v Graves, 265 NY 431; Welch v Henry, 305 US 134; United States v Hudson, 299 US 498; Matter of New York O. & W. Ry. Co., 161 F2d 518; Helvering v Reynolds, 313 US 428; Matter of Turner Constr. Co. v State Tax Comm., 57 AD2d 201; Matter of Sverdlow v Bates, 283 App Div 487.) II. This proceeding presents no justiciable controversy. (Metropolitan Trust Co. of City of N. Y. v State Bd. of Tax Comrs., 220 NY 344; People ex rel. Watchtower Bible & Tract Soc. v Haring, 286 App Div 676; Guardian Life Ins. Co. of Amer. v Graves, 268 App Div 809, 294 NY 953; Mutual Life Ins. Co. of N. Y. v State Tax Comm., 17 NY2d 736; Matter of State Ind. Comm., 224 NY 13; Ivory v Edwards, 278 App Div 359, 304 NY 949; New York State Assn. of Ins. Agents v Schenck, 44 AD2d 757; New York Public Interest Research Group v Carey, 42 NY2d 527; Simon v Eastern Ky. Welfare Rights Organization, 426 US 26; Gardner v Helvering, 88 F2d 746.) III. Petitioners must first resort to their administrative remedies as provided by sections 1138, 1139 and 1140 of the Tax Law. The provision in the State Administrative Procedure Act for judicial review of rulings and regulations has no application in a tax case because of the Tax Commission’s "exclusive” jurisdiction. (Richfield Oil Corp.

      of N. Y. v City of Syracuse, 287 NY 234; New York Cent. & Hudson Riv. R. R. Co. v City of Yonkers, 238 NY 165; Oak Hill Country Club v Town of Pittsford, 264 NY 133; Lewis v City of Lockport, 276 NY 336; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Matter of Howard v Wyman, 28 NY2d 434; People ex rel. Broadway & 96th St. Realty Co. v Walsh, 203 App Div 468; Local 814, Int. Brotherhood of Teamsters, Chauffeurs, Warehousemen v N. L. R. B., 512 F2d 564; Matter of First Nat. City Bank v City of New York Fin. Admin., 36 NY2d 87; Matter of McLean v Jephson, 123 NY 142.) IV. The first-named petitioner, National Elevator Industry, Inc., is a trade association and has no standing to sue in this case. (People ex rel. Merchants’ Nat. Bank v Coleman, 41 Hun 344; Matter of City of New York v New York Univ., 3 AD2d 954; Nicholoulias v Regent Rest., 175 Misc 526; Simon v Eastern Ky. Welfare Rights Organization, 426 US 26; Toomer v Witsell, 334 US 385; New York State Assn. of Ins. Agents v Schenck, 44 AD2d 757; Ivory v Edwards, 278 App Div 359, 304 NY 949; Matter of Jones v Berman, 37 NY2d 42; Central School Dist. No. 1 of Towns of Ontario, Walworth, Macedon, Williamson & Marion v Rochester Gas & Elec. Corp., 61 Misc 2d 846; Ladue v Goodhead, 181 Misc 807.)

      Howard F. Ordman, Edward F. Callan and Peter J. Powers for respondents.
    I. The new regulation of the New York State Tax Commission imposing the sales tax on Type II elevator and escalator maintenance contracts is contrary to the intent and plain meaning of the Legislature in enacting and reenacting section 1105 (subd [c], par [5]) of the Tax Law. (New York State Cable Tel. Assn. v State Tax Comm., 59 AD2d 81; Matter of Consolidated Edison Co. of N. Y. v State Tax Comm. of State of N. Y., 24 NY2d 114; Citibank, N. A. v City of New York Fin. Admin., 43 NY2d 425; Matter of Inter-County Tit. Guar. & Mtge. Co. v State Tax Comm., 33 AD2d 251, 28 NY2d 179; Matter of Dobess Realty Corp. v Magid, 186 Misc 225; Matter of Lockport Union-Sun Journal v Preisch, 7 AD2d 502, 8 NY2d 54; Matter of Del Giorno v Police Dept. of City of N. Y., 33 AD2d 665; Direen Operating Corp. v State Tax Comm., 46 AD2d 191.) II. The classifications set up in the New York State Tax Commission Declaratory Ruling 77-01 violate the equal protection of laws requirements of the Constitution of the United States of America. (Barbier v Connolly, 113 US 27; Bell’s Gap R. R. Co. v Pennsylvania, 134 US 232; Society of

      Plastics Ind. v City of New York, 68 Misc 2d 366; Michigan Cent. R. R. v Powers, 201 US 245; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Allied Stores of Ohio v Bowers, 358 US 522; Home Ins. Co. v New York, 134 US 594; New Orleans v Dukes, 427 US 297.) III. This proceeding was properly brought under CPLR article 78. (Matter of Hospital Tel. Systems v New York State Tax Comm., 63 Misc 2d 705, 41 AD2d 576; New York State Cable Tel. Assn. v State Tax Comm., 59 AD2d 81; Data Processing Serv. v Camp, 397 US 150; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; National Organization for Women v State Div. of Human Rights, 34 NY2d 416; Matter of Association of Employing Plumbing Contrs. of Nassau County v Gaynor, 48 AD2d 892; Empire State Ch. of Associated Bldrs. & Contrs. v Rome Housing Auth., 72 Misc 2d 910; Society of Plastics Ind. v City of New York, 68 Misc 2d 366; Matter of General Bldg. Contrs. of N. Y. State v County of Oneida, 54 Misc 2d 260.)
   OPINION OF THE COURT

Jones, J.

The fact that it had ruled in 1966 that services performed under certain elevator maintenance contracts were not subject to State sales tax did not preclude the State Tax Commission from making a prospective declaratory ruling in 1977 that services rendered under similar contracts were subject to such tax. Petitioner, a domestic membership corporation of escalator and elevator maintenance and construction companies at whose instance the declaratory ruling had been issued, had standing in this article 78 proceeding to seek judicial review of the commission’s declaratory ruling.

The substantive issue arises under the provisions of section 1105 (subd [c], par [5]) of the Tax Law:

"§ 1105. Imposition of sales tax

"On and after June first, nineteen hundred seventy-one, there is hereby imposed and there shall be paid a tax of four percent upon:

* * *

"(c) The receipts from every sale, except for resale, of the following services:

* * *

"(5) Maintaining, servicing or repairing real property, property or land, as such terms are defined in the real property tax law, whether the services are performed in or outside of a building, as distinguished from adding to or improving such real property, property or land, by a capital improvement, but excluding services rendered by an individual who is not in a regular trade or business offering his services to the public, and excluding interior cleaning and maintenance services performed on a regular contractual basis for a term of not less than thirty days, other than window cleaning, rodent and pest control and trash removal from buildings.”

On December 6, 1966 the Commissioner of Taxation and Finance of the State of New York issued a ruling that standard elevator and escalator maintenance contracts were "contracts for interior maintenance for a term of not less than thirty days” and that services performed pursuant to such contracts were therefore exempt from New York State sales tax (CCH, 2 NY Tax Rep, par 60-135.31). As a consequence of this ruling no sales taxes were collected from 1966 to 1976 by the members of National Elevator Industry, Inc. (NEII), for services performed under long-term elevator and escalator maintenance contracts.

On August 26, 1976 new regulations were promulgated by the Tax Commission, effective September 1, 1976, interpreting paragraph (5) which raised questions among members of NEII as to a possible change in the position of the commission with respect to the taxability of receipts from services performed pursuant to such long-term contracts (20 NYCRR 527.7). On November 11, 1976 NEII, through its counsel, wrote the Tax Commission for clarification concerning the application of the new regulations. On January 19, 1977 the commission responded, inviting submission of a formal request for a declaratory ruling under the State Administrative Procedure Act and giving assurance that no new tax liability would be asserted pending issuance of the declaratory ruling.

On February 11, 1977 formal request was made on behalf of NEII for a declaratory ruling pursuant to section 204 of the State Administrative Procedure Act with respect to seven standard forms of maintenance contracts. On July 28, 1977 the commission issued Declaratory Ruling 77-01 (CCH, 2 NY Tax Rep, par 60-135.30) which declared that services performed under three of the standard form contracts (so-called "Type I” contracts) were tax exempt but that services rendered under the other four standard form contracts (so-called "Type II” contracts) would be taxable. The distinction between Type I and Type II contracts was based on the extent of the obligation to repair in the contracts. The commission expressly declared that the ruling would be applicable only to services rendered on and after September 1, 1977, although the contract therefor might have been entered into prior to that date. On August 24, 1977 the commission denied an informal request for reconsideration of its ruling, inviting attention to the fact that "the normal avenues of attack through the courts are open to you”.

The present proceeding was thereupon instituted under article 78 by NEII and Westinghouse Electric Corporation, a Pennsylvania corporation engaged in performing escalator and elevator maintenance services in New York State, three of whose standard form contracts had been the subject of Declaratory Ruling 77-01 (one having been held exempt as a Type I contract and the other two having been held taxable as Type II contracts). The Tax Commission moved to dismiss the petition under CPLR 3211 on the grounds that NEII did not have legal standing to sue, that article 78 relief was unavailable because an exclusive remedy was provided by sections 1138, 1139 and 1140 of the Tax Law, and that the petition failed to state a cause of action because no question was posed as to liability for specific amounts of tax or tax refunds. Supreme Court granted the motion and dismissed the petition. On appeal the Appellate Division converted the proceeding under CPLR 103 (subd [c]) to an action for declaratory judgment and directed a declaration in petitioners’ favor. We now reverse and direct dismissal of the proceeding, upholding the validity of Declaratory Ruling 77-01.

At the threshold there is some procedural brush to be cleared away. First, because it is a bona fide organization representing taxpayers whose interests are directly affected by the declaratory ruling, NEII has legal standing in the present proceeding (Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1).

Second, a proceeding under CPLR article 78 is the proper procedural vehicle for obtaining judicial review of Declaratory Ruling 77-01. Indeed, it is precisely the procedure contemplated by the statute which makes provision for declaratory rulings. The State Administrative Procedure Act was adopted in 1975, effective September 1, 1976 (L 1975, ch 167). Sections 204 and 205 of that act provide as follows:

"§ 204. Declaratory rulings by agencies

"On petition of any person, any agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. Each agency shall prescribe by rule the form for such petitions and the procedure for their submission, consideration and disposition. A declaratory ruling shall be binding upon the agency unless it is altered or set aside by a court. The agency may not retroactively change a valid declaratory ruling, but nothing in this section shall prevent an agency from prospectively changing any declaratory ruling. A declaratory ruling shall be made available to the public. A declaratory ruling shall be subject to review in the manner provided for in article seventy-eight of the civil practice law and rules.

"§ 205. Right to judicial review of rules

"Unless an exclusive procedure or remedy is provided by law, judicial review of rules may be had upon petition presented under article seventy-eight of the civil practice law and rules, or in an action for a declaratory judgment where applicable and proper. The agency shall be made a party to the proceedings. Such a special proceeding or action may not be maintained unless the petitioner has first requested the agency to pass upon the validity or applicability of the rule in question and action has been taken upon such a request or more than thirty days has elapsed since such request has been filed and no final action has been taken thereon or the agency has not provided for the issuance of such declaratory rulings under section two hundred four. Unless the agency acts upon such request within thirty days of its filing, such request shall be deemed to have been denied. Nothing in this section shall be construed to grant or deny to any person standing to petition under article seventy-eight of the civil practice law and rules or to bring an action for a declaratory judgment or to prohibit the determination of the validity or applicability of the rule in any other action or proceeding in which its invalidity or inapplicability is properly asserted.”

Implementing regulations were immediately promulgated by the State Tax Commission (20 NYCRR 900.2). Inasmuch as the commission itself expressly invited a request for a declaratory ruling under the State Administrative Procedure Act and both the eventuating request and the consequent declaratory ruling referred explicitly to section 204, the assertion now that no judicial review lies because sections 1138, 1139 and 1140 of the Tax Law provide the exclusive procedural remedy can only be characterized as captious. Section 204 expressly provides in its last sentence that a "declaratory ruling shall be subject to review in the manner provided for in article seventy-eight of the civil practice law and rules”. Accordingly it was error to convert this proceeding from one under article 78 to an action for a declaratory judgment, as was done; it is properly an article 78 proceeding.

It may be noted that section 205 contemplates judicial scrutiny in an article 78 proceeding or in an action for a declaratory judgment. Section 205, however, relates only to judicial review of "rules”, not "declaratory rulings” which are the subject of section 204, and "rules” are expressly defined as not including "rulings issued under section two hundred four” (State Administrative Procedure Act, § 102, subd 2, par [b], cl [iii]). Similarly the defense based on the availability of “an exclusive procedure or remedy * * * provided by law” (for which purpose the Tax Commission seeks to invoke the provisions of sections 1138, 1139 and 1140 of the Tax Law) is available under section 205 but not under section 204.

We turn then to the merits and confront the two challenges which petitioners aim at the Tax Commission’s 1977 ruling— first, that the commission is precluded in consequence of its 1966 ruling from now making what is perceived as an inconsistent ruling and, second, that in any event the 1977 ruling is at variance with the taxing statute. For the purposes of our consideration of the first contention we may assume that the 1966 and the 1977 rulings are indeed inconsistent inasmuch as they involve substantially similar maintenance contracts and reach opposite conclusions. At the outset, in addressing this challenge, we note that the commission’s 1977 ruling is expressly made prospective only, i.e., relating solely to services rendered on and after September 1, 1977. Thus, we are not confronted with problems which might arise from the retroactive application of an inconsistent ruling.

We know of no rule of law (surely there is no constitutional proscription) against altered or inconsistent prospective rulings in the administration of tax laws. Indeed the administration of tax laws would be unacceptably hobbled were there any such inhibiting rule of law. The taxing authorities are not to be foreclosed from the rational application for the future of shifts in understandings of the economic realities of underlying transactions, of movement in the judicial reading of legislative enactments or of other forms of new wisdom born of experience. Indeed with the enactment of the State Administrative Procedure Act in 1975 the Legislature expressly recognized the authority of administrative agencies of State government to change rulings prospectively: "[N]othing in this section shall prevent an agency from prospectively changing any declaratory ruling.” (§ 204.)

Nor is there any substance to petitioners’ principal contention that in consequence of the re-enactment of section 1105 of the Tax Law in 1969 (L 1969, ch 116, § 1), the 1966 ruling became so embedded in the law that only the Legislature could effect a change. It boggles the mind to contemplate the implications of any doctrine that the re-enactment of a taxing statute to set a new rate of tax and to fix the date on which the new rate becomes effective operates inexorably to freeze all outstanding interpretive rulings by the agency administering the tax! To describe such a doctrine is to expose its unworkability. (Cf. Matter of Del Giorno v Police Dept. of City of N. Y., 33 AD2d 665.)

As the Supreme Court of the United States has pointedly observed with respect to the administration of Federal taxes: "The oft-repeated statement that administrative construction receives legislative approval by reenactment of a statutory provision, without material change [citation omitted] covers the situation where the validity of administrative action standing by itself may be dubious or where ambiguities in a statute or rules are resolved by reference to administrative practice prior to reenactment of a statute; and where it does not appear that the rule or practice has been changed by the administrative agency through exercise of its continuing rule-making power. It does not mean that a regulation interpreting a provision of one act becomes frozen into another act merely by reenactment of that provision, so that that administrative interpretation cannot be changed prospectively through exercise of appropriate rule-making powers. [Citation omitted.] The contrary conclusion would not only drastically curtail the scope and materially impair the flexibility of administrative action; it would produce a most awkward situation. Outstanding regulations which had survived one Act could be changed only after a pre-view by the Congress. In preparation for a new revenue Act the Commissioner would have to prepare in advance new regulations covering old provisions. Their effectiveness would have to await Congressional approval of the new Act. The effect of such procedure, so far as time is concerned, would be precisely the same as if these new regulations were submitted to the Congress for approval. Such dilution of administrative powers would deprive the administrative process of some of its most valuable qualities — ease of adjustment to change, flexibility in light of experience, swiftness in meeting new or emergency situations. It would make the administrative process under these circumstances cumbersome and slow. Known inequities in existing regulations would have to await the advent of a new revenue act. Paralysis in effort to keep abreast of changes in business practices and new conditions would redound at times to the detriment of the revenue; at times to the disadvantage of the taxpayer. Likewise the result would be to read into the grant of express administrative powers an implied condition that they were not to be exercised unless, in effect, the Congress had consented.” (Helvering v Wilshire Oil Co., 308 US 90, 100-101.)

Finally, then, we address the validity of Declaratory Ruling 77-01 (and to some extent the validity of subdivision [c] of regulation 527.7) under section 1105 (subd [c], par [5]) of the Tax Law as if there had been no previous ruling. That paragraph imposes a sales tax on services performed in "[maintaining, servicing or repairing” buildings but excludes from the tax "interior cleaning and maintenance services” performed on a long-term contractual basis "other than window cleaning, rodent and pest control and trash removal”. Services involving "repairs”, while included in the provision imposing the tax, are not likewise expressly identified in the exclusion clause. The commission has ruled, on the basis of the Direen case (46 AD2d 191), that "repair services of a limited and simple nature” are to be classified as within the category of "maintenance services” and are thus exempt from the sales tax. On the other hand, services under contracts calling for more substantial repairs do not come within the exclusion. This ruling appears to reflect a rational and reasonable application of the distinction set out in the statute.

Finally, we note that there is no merit to the assertion that the distinction drawn by the commission between taxable and nontaxable contracts contravenes the constitutional right to equal protection (cf. Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Allied Stores of Ohio v Bowers, 358 US 522).

For the reasons stated the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court dismissing the petition reinstated.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.

      . After inviting NEII to seek the declaratory ruling and then advising it that the normal avenues of review in the courts were open to it, it similarly ill becomes the Tax Commission to challenge NEII’s legal standing in the present proceeding.

      . In any event, these sections relate to remedies "for the review of tax liability”. The present proceeding does not seek review of any determination of tax liability; rather it seeks judicial review of a declaratory ruling on the basis of which petitioners understandably anticipate that subsequent determinations of tax liability will be made.

      . To the extent that Matter of Consolidated Edison Co. of N. Y. v State Tax Comm. of State of N. Y. (24 NY2d 114, 119) may be read as approving another rule it is rejected.

      . In the present instance, what may be termed the change of position on the part of the Tax Commission appears to have been triggered in part, at least, by the opinion of the Appellate Division, Third Department, in December, 1974 implying that the exemptive language found in section 1105 (subd [c], par [5]) did not operate to exempt all repair services (Direen Operating Corp. v State Tax Comm., 46 AD2d 191). We are told that it was in consequence of the opinion in that case that the new regulations were issued in 1976.

      . In passing we observe that this is not an instance in which the administrative agency cites legislative re-enactment subsequent to the promulgation of administrative regulations to sustain their validity.

      . The services described in this category in Direen were occasionally releasing a stuck window or replacing a washer in a leaky faucet (46 AD2d 191,193).

      . In the latter category are included contracts which contain an obligation to repair or replace "stairway machines, step chains, main drive chains, handrail drive chains, tracks, controllers, sprockets and parts thereof, including: drive motors, worms and gears, bearings, rotating elements, brake magnet coils, brake shoes and linings, windings and coils, contacts and relays, resistors and transformers, and solid state devices”, or “stop buttons, brake on main drive sprocket, slack step chain switches, skirt safety switches, governor switches, step treads, combplate finger sections, handrails and handrail guides”. (Declaratory Ruling 77-01.)


text:
    In the Matter of Urban League of Rochester, N. Y. Inc., Appellant, v County of Monroe et al., Respondents.
    Argued February 13, 1980;
    decided March 27, 1980

      POINTS OF COUNSEL

      Paul A. Fischer for appellant.
    I. The total and absolute nature of the 1974 repeal of the optional county government law, including section 1008 thereof, placed the Monroe County Civil Service Commission under the requirements of section 15 (subd 1, par [a]) of the Civil Service Law, and removed any valid basis for the commission as it has been since constituted. (Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Matter of Albano v Kirby, 36 NY2d 526; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Matter of Smith [Great Amer. Ins. Co.], 29 NY2d 116; Williams v Williams, 23 NY2d 592.) II. Contrary to the court below, section 93 of the General Construction Law cannot operate to preserve the Monroe County Civil Service Commission, since any applicable requirements of section 93 were superseded by contrary legislative intent in chapter 28 of the Laws of 1974, and since section 93 applies only to acts done prior to repeal of a statute, not those done after the repeal. (Matter of Morse, 247 NY 290; Davidson v Witthaus, 106 App Div 182; Kelly v State of New York, 57 AD2d 230; People v Roper, 259 NY 635.) III. Contrary to the court below, section 1200 of the Monroe County Charter is not a valid basis for the present Monroe County Civil Service Commission, since this local law is impermissible under the Municipal Home Rule Law, as well as under the Civil Service Law and chapter 28 of the Laws of 1974. (Wholesale Laundry Bd. of Trade v City of New York, 43 Misc 2d 816, 22 AD2d 762, 15 NY2d 604; Rooney v City of Long Beach, 42 AD2d 34; Koenig v Morin, 56 AD2d 254; People v Blue Ribbon Ice Cream Co., 1 Misc 2d 453.)

      John D. Doyle, County Attorney (Joseph C. Pilato of counsel), for respondents.
    I. The five-member Monroe County Civil Service Commission is lawful. (Matter of Caparco v Kaplan, 20 AD2d 212; Wholesale Laundry Bd. of Trade v City of New York, 43 Misc 2d 816, 22 AD2d 762, 15 NY2d 604; Rooney v City of Long Beach, 42 AD2d 34; People v Blue Ribbon Ice Cream Co., 1 Misc 2d 453; Koenig v Morin, 56 AD2d 254; Matter of City of Rochester v County of Monroe, 81 Misc 2d 462.) II. The principles of continuity and order require that this court declare the Monroe County Civil Service Commission legal. (Williams v Williams, 23 NY2d 592; Matter of Smith [Great Amer. Ins. Co.], 29 NY2d 116; Motor Vehicle Acc. Ind. Corp. v Eisenberg, 18 NY2d 1; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556.) III. Petitioner has failed to satisfy the jurisdictional and standing requirements for article 78 proceeding. (Matter of O’Neill v Schechter, 5 NY2d 548.)
   OPINION OF THE COURT

Jones, J.

The Urban League of Rochester does not have legal standing to challenge the continuing authority of the Monroe County Manager to appoint members to the five-member county civil service commission without participation of the County Legislature.

Based on its analysis of the individualized statutory enactments with respect to the form of Monroe County government, the Urban League of Rochester contends that, while the appointment of a five-member civil service commission by the County Manager alone was authorized by State statute until 1974, in that year State authorization for that exceptional procedure was withdrawn. The Urban League argues that since 1974, in accordance with the general mandate of section 15 (subd 1, par [a]) of the Civil Service Law, there should have been a three-member commission, each of whose members should have been appointed by the County Manager, but only with the advice and consent of the County Legislature.

The Urban League instituted the present proceeding under CPLR article 78 for an order directing the appointment of a new Monroe County Civil Service Commission in conformity with its views as to the mandate of the Civil Service Law. Supreme Court dismissed the petition on the merits, and the Appellate Division, one Justice dissenting, affirmed. Without reaching the merits we now reverse and direct dismissal of the proceeding on the ground that the Urban League has no legal standing to institute this proceeding.

In recent years, the doctrine of standing to seek judicial review of State and municipal governmental action has received continuing attention in our court. The present case is the latest chapter in this saga and presents an appropriate occasion to indicate that there are outer limits to what has been an expanding concept.

In National Organization for Women v State Div. of Human Rights (34 NY2d 416) we held that a national organization "dedicated to eliminating discriminatory practices against women” (pp 419-420) representing a "class with a specific interest in the litigation in question” (p 420) had standing to challenge discrimination against females in the help wanted columns of a newspaper. In Matter of Burke v Sugarman (35 NY2d 39) we acknowledged the right of candidates for promotion on a civil service eligibility list to challenge civil service appointments made in alleged disregard of the list. Then in Matter of Douglaston Civic Assn. v Galvin (36 NY2d 1, 7) we accorded to an "appropriate representative association” the right "to act as representative of the group [individuals, concededly aggrieved residents and property owners] whose rights it is asserting.”

Then came Boryszewski v Brydges (37 NY2d 361, 363) in which we expressly overruled prior cases in our court taking a more limited view and held that a citizen-taxpayer had standing "to test the constitutionality of a State statute authorizing the expenditure of State moneys”. At the same time the Legislature enacted a new article 7-A of the State Finance Law authorizing citizen-taxpayers to bring legal proceedings to challenge the "wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property” (L 1975, ch 827, eff Sept. 1, 1975; § 123-b).

In the next chapter, our holding in Boryszewski was extended to give judicial recognition to the right of a citizen-taxpayer to question the constitutionality of a revenue-raising (as distinguished from a disbursing) measure (Wein v Carey, 41 NY2d 498). Respecting the Legislature’s explicit resolution of the policy considerations involved however, in Wein v Comptroller of State of N. Y. (46 NY2d 394) we tempered the right to attack revenue-raising measures by holding that such right did not include the right to challenge the constitutionality of the issuance of State bond anticipation notes.

The present case must be considered against this background.

In support of its claim to standing in the present case the Urban League notes that among its organizational purposes is to decrease "unemployment among members of racial minorities in Monroe County” and that it is committed to "increasing minority employment in employment positions which are under the jurisdiction of the Monroe County Civil Service Commission” and to "increasing representation of racial minorities on public commissions and boards”. Attention is also drawn to the devotion by the Urban League of extensive resources to study of the Monroe County Civil Service Commission, its policies and procedures.

The county civil service commission’s mission is broadly addressed to the full range of civil service employment in Monroe County. While, of course, the commission cannot countenance racial discrimination, it is not particularly charged with a focused responsibility as to this aspect of employment as, for instance, is the State Division of Human Rights. No persuasive reason is advanced, moreover, as tó why (to say nothing of whether) minority employment would be increased among civil service employees under the supervision of a commission with two fewer members or under a commission whose individual members could only be appointed with the approval of the County Legislature. In a raw statistical sense it would seem that the prospect of appointment of minority members to the commission would be greater with a five-member than with a three-member commission. In short, there is not here the evidently close parallelism of institutional concern between the organizational objectives of the opposing litigants which characterized the National Organization for Women case.

Viewed in another perspective, the Urban League cannot claim entitlement to recognition as a representative unit acting on behalf of individual members whose interest and aggrievement are such as to accord them standing, as was true in the Douglaston Civic Association case. Nothing suggests that the members of the Urban League generally or in any subgroup (although perhaps displaying a more active interest than the general public in civic affairs, particularly as related to the advancement of the interests of members of ethnic minorities) should be classified differently from citizen-taxpayers at large in Monroe County. We are not prepared to recognize legal standing on the part of any citizen-taxpayer, without more, to obtain judicial scrutiny of the nonfiscal activities of the agencies of municipal government. The Urban League in this proceeding has not demonstrated that it falls within any of the categories of litigants whose right to standing we have so far recognized.

For the reasons stated, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court, Monroe County, with directions to dismiss the proceeding for lack of legal standing of petitioner.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.


author: Jones, J. Meyer, J.

text:
    Muriel Zuckerman, Plaintiff, v City of New York et al., Respondents, New York City Transit Authority, Appellant, et al., Defendant.
    Argued February 7, 1980;
    decided April 1, 1980

      POINTS OF COUNSEL

      Kenneth J. Chertoff, Helen R. Cassidy and John A. Murray for appellant.
    The order of the Supreme Court, New York County, as affirmed by the Appellate Division, First Department, was not properly made. (Nolechek v Gesuale, 46 NY2d 332; Barry v Niagara Frontier Tr. System, 35 NY2d 629; Rogers v Dorchester Assoc., 32 NY2d 553; McMahon v Surface Transp. Corp. of N. Y., 272 App Div 202; Sheridan v City of New York, 6 AD2d 125, 6 NY2d 765; Eidelberg v Zellermayer, 5 AD2d 658; Slater v American Min. Spirits Co., 33 NY2d 443; Stoughton v State Farm Mut. Auto. Ins. Co., 54 AD2d 602; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Vavolizza v Krieger, 33 NY2d 351.)

      Allen G. Schwartz, Corporation Counsel (Bernard Abel and L. Kevin Sheridan of counsel), for City of New York, respondent.
    Summary judgment was properly denied herein, since the cross complaints of defendants, City of New York and Royfost, against the transit authority raise issues of fact which were not resolved by the prior order granting summary judgment to the transit authority against plaintiff alone. (Young v Jamaica Buses, 262 App Div 860; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Greenberg v City of Yonkers, 37 NY2d 907; McMahon v Surface Transp. Corp. of N. Y, 272 App Div 202; Sheridan v City of New York, 6 NY2d 765; Moskowitz v Garlock, 23 AD2d 843; Raybin v Raybin, 15 AD2d 679; Phillips v Kantor & Co., 31 NY2d 307.)

      Nathan Cyperstein and Alvin P. Bluthman for Royfost Co., Inc., respondent.
    The order of the Supreme Court, as affirmed

      by the Appellate Division, First Department, was properly made. (Dole v Dow Chem. Co., 30 NY2d 143; Sheridan v City of New York, 6 AD2d 125, 6 NY2d 765; McMahon v Surface Transp. Corp. of N. Y., 272 App Div 202; Klinger v Dudley, 41 NY2d 362; Greenberg v City of Yonkers, 37 NY2d 907; Barry v Niagara Frontier Tr. System, 35 NY2d 629; Rogers v Dorchester Assoc., 32 NY2d 553; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65.)
   OPINION OF THE COURT

Jones, J.

We repeat today a precept frequently stated — where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement.

On April 3, 1975 plaintiff (who is not a party to the present appeal) was injured when she fell at a curb near a bus stop located in the City of New York while she was attempting to board a bus. She thereafter instituted an action against the city as owner of the sidewalk, the New York City Transit Authority as operator of the bus, Royfost Co., Inc., the owner of the abutting property, and Harvey’s Seafood House, Inc., the tenant in the abutting property. Each of the four defendants cross-claimed against the others, simply asking for indemnification or apportionment of liability under Dole v Dow Chem. Co. (30 NY2d 143).

Because the only basis for liability of the transit authority set out in the complaint was its alleged failure to have maintained the sidewalk and curb at the site of the accident in a safe condition and its negligence in permitting it to have become dangerous, the transit authority moved for summary judgment dismissing plaintiffs pleading as to it, asserting that it was under no legal obligation to maintain the sidewalk or curb. Agreeing with that contention, on June 19, 1977 Supreme Court granted the relief requested. No appeal from that disposition was taken by plaintiff or by any of the other defendants, each of whom had been served with notice of the transit authority’s motion.

The transit authority then moved for summary judgment dismissing all cross claims against it, renewing its disclaimer of obligation with regard to sidewalk or curb maintenance and pointing out that if, as had been determined on the previous motion for summary judgment, it owed no duty to plaintiff for the condition of the sidewalk, it could owe no obligation of contribution to the codefendants. The city opposed the motion on a ground subsequently abandoned after it had aligned itself with the position of Royfost, owner of the abutting property. The latter opposed the motion to dismiss by an affirmation of its attorney stating that, although plaintiff’s complaint alleging liability of the transit authority predicated on an obligation to maintain the sidewalk and curb had been dismissed, in a comptroller’s hearing plaintiff said that as she prepared to enter the bus her foot sank into mud at the curb and that this happened because the bus did not stop at the curb. The attorney concluded that the accident was therefore caused by the transit authority because its bus did not pull up to the curb and urged that a trial with respect to the cross claims should be had because "[u]pon the trial of the action, which will doubtless entail a thorough examination of plaintiff and which may entail a thorough examination of other witnesses to the occurrence, the evidence will doubtless support the view that new york city transit authority through the negligent and reckless operation of its buses particularly with regard to boarding passengers, caused plaintiff to suffer the injuries of which she complains.” Nothing accompanied the attorney’s affirmation.

Supreme Court denied the transit authority’s motion for summary judgment and the Appellate Division, by a divided court, affirmed, thereafter granting the transit authority leave to appeal to our court and certifying the question, "Was the order of the Supreme Court, as affirmed by this Court, properly made?” In affirming the denial of the motion by which the transit authority sought disposition of all claims asserted against it arising out of plaintiff’s accident the majority of the court below held that the transit authority might be held liable under the Dole theory to one or more of its codefendants by reason of negligence in the operation of its bus— negligence not pleaded nor asserted by plaintiff but suggested by a codefendant for the first time in opposition to the transit authority’s summary judgment motion — despite the summary dismissal of plaintiffs complaint against the transit authority by which she had sought to hold it liable for her injuries by reason of alleged negligence in sidewalk and curb maintenance. The court also concluded that the hearsay affirmation by Royfost’s counsel was sufficient with respect to the claimed negligence in bus operation to preclude the grant of summary judgment.

Because this latter conclusion was error, on this record we do not reach the question whether the Appellate Division’s disposition reflected a proper application of the Dole principle. We recently restated the principles applicable to the disposition of motions for summary judgment in Friends of Animals v Associated Fur Mfrs. (46 NY2d 1065, 1067-1068): "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd [b]). Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form (e.g., Phillips v Kantor & Co., 31 NY2d 307; Indig v Finkelstein, 23 NY2d 728; also CPLR 3212, subd [f]).” We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord v Swift & Muller Constr. Co., 46 NY2d 276, 281-282; Fried v Bower & Gardner, 46 NY2d 765, 767; Platzman v American Totalisator Co., 45 NY2d 910, 912; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290).

In this instance the transit authority, the moving party, has met its burden by submission of the pleadings in the action by plaintiff against it together with the final judicial dismissal of that action. We turn then to the submission on the part of Royfost and the city to determine its sufficiency to defeat the grant of summary judgment to which the transit authority would otherwise be entitled. This consisted only of the bare affirmation of Royfost’s attorney who demonstrated no personal knowledge of the manner in which the accident occurred. Such an affirmation by counsel is without evidentiary value and thus unavailing (Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 500; Israelson v Rubin, 20 AD2d 668, affd 14 NY2d 887; Lamberta v Long Is. R. R., 51 AD2d 730). His speculation as to what would "doubtless” appear at the trial is patently inadequate to establish the existence of a factual issue requiring a trial as to the manner of operation of the transit authority’s bus. The record contains no affidavit of plaintiff or of any eyewitness and no transcript of any examination before trial; no request was made for an adjournment of the motion to permit any such examination; no identification of the hypothetical "other witnesses to the occurrence”, with an accompanying statement as to the substance of their testimony and explanation for failure to submit affidavits from them, was proffered.

The affidavit or affirmation of an attorney, even if he has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide "evidentiary proof in admissible form”, e.g., documents, transcripts. Such an affidavit or affirmation could also be accepted with respect to admissions of a party made in the attorney’s presence. In the present instance, however, the attorney was not present at the comptroller’s hearing, nor was anyone else on behalf of his client. As to that hearing the attorney was a total stranger.

Thus, there is a failure to tender evidentiary proof in admissible form and no offer of excuse for such failure. In this circumstance it was error to deny the transit authority’s motion for summary judgment on the speculative ground that recovery against it on one or more of the cross claims might be premised on negligent operation of its bus.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion for summary judgment granted against all codefendants.

Meyer, J.

(concurring). I concur in the conclusion of the majority that the transit authority’s motion for summary judgment should have been granted, but do so on the ground, articulated in Presiding Justice Murphy’s dissent below (66 AD2d, at pp 267-268), that the failure of the authority’s bus driver to stop close to the curb could not be found to be a proximate cause of plaintiffs injury.

I cannot agree, however, to the reasoning of the majority, which in my view is a hypertechnical exaltation of form over substance. That an attorney’s affidavit is insufficient to put before the court on a motion for summary judgment facts of which he has no personal knowledge is an eminently sound rule well known to the Bar, but it is likewise well known that an affidavit based on documentary evidence in an attorney’s possession is probative and sufficient, notwithstanding his lack of personal knowledge (Getlan v Hofstra Univ., 41 AD2d 830, 831, app dsmd 33 NY2d 646).

The latter rule, moreover, permits use of an attorney’s affidavit to put before the court factual data from a deposition (Dorkin v American Express Co., 43 AD2d 877; see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.09). Lamberta v Long Is. R. R. (51 AD2d 730), relied on by the majority, is not to the contrary, for it was the conclusory nature of the restatement rather than the failure to annex the deposition which formed the basis for the ruling in that case. Here, the factual data is set forth in the affidavit as fact, rather than as conclusion (see 66 AD2d, at p 250). While it would certainly have been better practice to annex the deposition summarized, to seize upon the failure to do so as the ground for dismissal would appear to be contrary to the practice as presently understood.

Nor should denial by the Appellate Division of plaintiffs application to supplement the record by annexing the transcript of the examination before the comptroller be given significance in view of the acceptance by the majority of that court of the attorney’s affidavit as sufficient to present the facts. To deal with its doing so as an error of law, rather than an unreviewable act of discretion, is needlessly to ignore the realities of litigation practice and to expose attorneys to possible malpractice liability without material benefit to the administration of justice.

Chief Judge Cooke and Judges Jasen, Wachtler and Fuchsberg concur with Judge Jones; Judge Meyer concurs in a separate opinion in which Judge Gabrielli concurs.

Order reversed, with costs, and the motion for summary judgment granted against all codefendants. Question certified answered in the negative.

      . Not otherwise described and without indication of the participants thereat.

      . It appears that Harvey’s Seafood House, Inc., the tenant, defaulted at Special Term and at the Appellate Division. It has taken no part in the appeal in our court.

      . As indicated, reference is made in the attorney’s affirmation to a hearing before the city comptroller at which plaintiff testified. While conclusory restatements of her testimony at that hearing were included in the affirmation, no copy of the transcript was attached. Indeed, we are informed that Royfost’s application made at the Appellate Division to supplement the record to include such transcript was denied by that court. No benefit may be derived from these conclusory statements (Lamberta v Long Is. R. R., 51 AD2d 730, supra), to say nothing of the speculative extrapolation of liability the attorney would erect on them.

       Of possible significance also in that respect is Presiding Justice Murphy’s statement that in considering the merits of the appeal the court had taken judicial notice of the entire county clerk’s file (66 AD2d, at p 261).