author: Wachtler, J. Gabrielli, J.

text:
    In the Matter of James Dudley, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 1.) In the Matter of the State of New York, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 2.)
    Argued February 11, 1981;
    decided April 30, 1981

      POINTS OF COUNSEL

      Peter H. Bouman and George L. Ingalls for appellant in the first above-entitled proceeding.
    I. Article 7 of the Real Property Tax Law is not and should not be deemed the exclusive method of judicial review under these facts. (Van Deventer v Long Is. City, 139 NY 133; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451; Zinder v Board of Assessors of County of Nassau, 66 Misc 2d 150, 38 AD2d 836; Matter of State Bd. of Equalization & Assessment v Kerwick, 91 Misc 2d 152; Central School Dist. No. 1 of Towns of Ontario, Walworth, Macedon, Williamson & Marion v Rochester Gas & Elec. Corp., 61 Misc 2d 846; People ex rel. Hoesterey v Taylor, 121 Misc 718, 210 App Div 196, 239 NY 626; Matter of State Bd. of Equalization & Assessment v Kerwick, 92 Misc 2d 547; Howitt v Street & Smith Pub., 276 NY 345.) II. Respondents’ acts coupled with the decisions of the court below deny petitioner and the class he represents rights guaranteed to them under the Fourteenth and First Amendments to the United States Constitution. (Everson v Board of Educ., 330 US 1; Walz v Tax Comm., 397 US 664; Abington School Dist. v Schempp, 374 US 203; Torcaso v Watkins, 367 US 488; Buffalo Hebrew Christian Mission v City of Syracuse, 33 AD2d 152; Autokefalos Orthodox Spiritual Church of St. George v City of Mount Vernon, 285 App Div 1175; Riverdale Country School v City of New York, 13 AD2d 103, 11 NY2d 741; Matter of Cannon Point North v Tax Comm. of City of N. Y., 30 AD2d 522.) III. The proceeding may be prosecuted and defended as a class action. (Kovarsky v Brooklyn Union Gas Co., 279 NY 304; Lichtyger v Franchard Corp., 18 NY2d 528; Harris v Wyman, 60 Misc 2d 1076; Young v Shuart, 67 Misc 2d 689, 39 AD2d 724; Matter of Knapp v Michaux, 55 AD2d 1025; Matter of O’Reilly v Grumet, 308 NY 351; Matter of Sheridan v Kennedy, 19 Misc 2d 765, 10 AD2d 606, 8 NY2d 794; Ray v Marine Midland Grace Trust Co., 35 NY2d 147.) IV. All necessary parties have been joined or can be joined. (Dobkin v Chapman, 21 NY2d 490; Mullane v Central Hanover Trust Co., 339 US 306; Walker v Hutchinson City, 352 US 112; Maloney v Ensign, 43 AD2d 902; Matter of Fellner v Mc

      Murray, 41 AD2d 853; Matter of Marshall v Quinones, 43 AD2d 436; Matter of Belmont, 40 Misc 133, affd sub nom. People ex rel. Belmont v Leonard, 83 App Div 643; Matter of Zimmerman v Kramer, 29 Misc 2d 413.) V. Relief on the merits is available to petitioners. (Mercantile Nat. Bank of City of N. Y. v Mayor of N. Y., 172 NY 35; City of Hudson v Board of Educ., 158 Misc 583; Van Deventer v Long Is. City, 139 NY 133; Bayer v Smith, 178 Misc 695; Harvey v Comby, 245 App Div 318; Hackley v Draper, 60 NY 88; Rice v Van Vranken, 132 Misc 82, 225 App Div 179, 255 NY 541; Cummings v National Bank, 101 US 153; Board of Educ. v Barnette, 319 US 624.)

      Robert Abrams, Attorney-General (Shirley Adelson Siegel and George M. Thorpe of counsel), for appellant in the second above-entitled proceeding.
    The petition was timely filed under the applicable Statute of Limitations. (Cohn v Lionel Corp., 21 NY2d 559; Kober v Kober, 16 NY2d 191; Mercantile Nat. Bank of City of N. Y. v Mayor of N. Y., 172 NY 35; Matter of Goldstein v Mills, 185 Misc 851, 270 App Div 930; Matter of Drelich v Kahn, 60 Misc 2d 227; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD2d 651; Akari House v Irizzary, 81 Misc 2d 543; Matter of Troy Towers Redevelopment Co. v City of Troy, 51 AD2d 173, 41 NY2d 816; Hillside Colony v Barbolt, 86 Misc 2d 20.)

      Stephen L. Oppenheim for respondents.
    I. The court below correctly applied the 30-day Statute of Limitations. (Frank v Levitt, 47 NY2d 853; Solnick v Whelan, 49 NY2d 224; Press v County of Monroe, 50 NY2d 695; Campbell v Nassau County, 273 App Div 785; Matter of Policemen’s Benevolent Assn. of Westchester County v Hitt, 75 Misc 2d 565; Timmerman v Board of Educ., 272 App Div 1075; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Greater N. Y. Corp. of Seventh-Day Adventists v Town of Dover, 29 AD2d 861; Matter of Mary Immaculate School of Eagle Park v Wilson, 73 AD2d 969; Van Deventer v Long Is. City, 139 NY 133.) II. Treated as article 78 proceedings, these proceedings are untimely. (Matter of Central School Dist. No. 2 of Towns

      of Coeymans, New Scotland, Bethlehem & New Baltimore v New York State Teachers’ Retirement System, 27 AD2d 265; Matter of Kleinman v Kaplan, 20 AD2d 594; Frank v Levitt, 47 NY2d 853; Matter of Policemen’s Benevolent Assn. of Westchester County v Hitt, 75 Misc 2d 565; Timmerman v Board of Educ., 272 App Div 1075; C.H.O.B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015, 16 NY2d 779; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Zinder v Board of Assessors of County of Nassau, 66 Misc 2d 150, 38 AD2d 836; Bloom v Mayor of City of N. Y., 35 AD2d 92, 28 NY2d 952; Matter of Drelich v Kahn, 60 Misc 2d 227.) III. Appellants may not maintain these proceedings on behalf of a class of petitioners. (People ex rel. Friendly v Davenport, 119 App Div 790; Ray v Marine Midland Grace Trust Co., 35 NY2d 147; Suffolk Housing Servs. v Town of Brookhaven, 69 AD2d 242; Kovarsky v Brooklyn Union Gas Co., 279 NY 304; Lichtyger v Franchard Corp., 18 NY2d 528; Matter of O’Reilly v Grumet, 308 NY 351; Matter of Sheridan v Kennedy, 19 Misc 2d 765, 10 AD2d 606, 8 NY2d 794; Harris v Wyman, 60 Misc 2d 1076; Young v Shuart, 67 Misc 2d 689, 39 AD2d 724; Matter of Knapp v Michaux, 55 AD2d 1025.) IV. An action will not lie to declare a tax roll void. (People ex rel. Marsh v Delany, 49 NY 655; People ex rel. Onderdonk v Supervisors of Queens County, 1 Hill 195; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; People ex rel. Friendly v Davenport, 119 App Div 790; Matter of Allen Sq. Co. v Krieger, 217 App Div 123.) V. Appellants failed to exhaust their administrative remedies. (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD 2d 651; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Frank v Levitt, 47 NY2d 853; Matter of State Bd. of Equalization & Assessment v Kerwick, 72 AD2d 292; Henry v Metropolitan Dade County, 329 F2d 780; Klotz v Consolidated Edison Co. of N. Y., 386 F Supp 577.) VI. The court does not have personal jurisdiction over necessary parties respondent. (Overing v Foote, 65 NY 263; People ex rel.

      Hoesterey v Taylor, 210 App Div 196; Stuart v Palmer, 74 NY 183; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550; Matter of Utica Sheet Metal Corp. v County of Tompkins, 40 AD2d 567; Russell v City of New York, 22 AD2d 706, 16 NY2d 641; Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222; Matter of Zimmerman v Kramer, 29 Misc 2d 413; Matter of Sima v Board of Stds. & Appeals of City of N. Y., 278 App Div 785; Matter of Douglaston Civic Assn. v Board of Stds. & Appeals of City of N. Y., 278 App Div 659, 302 NY 920.) VII. That properties containing Universal Life Church churches are constitutionally and statutorily entitled to exemption. (Gillette v United States, 401 US 437; Epperson v Arkansas, 393 US 97; Fowler v Rhode Island, 345 US 67; Zorach v Clauson, 343 US 306; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Order Minor Conventuals v Lee, 64 AD2d 227; Greater N. Y. Corp. of Seventh-Day Adventists v Town of Dover, 29 AD2d 861; Matter of New York Conference Assn. of Seventh-Day Adventists v Schenck, 279 App Div 845, 304 NY 706; People ex rel. Seminary of Our Lady of Angels v Barber, 42 Hun 27, 106 NY 669.)
   OPINION OF THE COURT

Wachtler, J.

The main issue on this appeal is whether individual taxpayers may, by way of an article 78 proceeding, challenge wholesale religious exemptions from taxation granted to other property owners. The Appellate Division held that in this situation the exclusive procedure for the challenge was article 7 of the Real Property Tax Law.

The instant litigation, as well as the litigation involved in two related appeals (see Town of Hardenburgh v State of New York, 52 NY2d 536; and Matter of State Bd. of Equalization & Assessment v Kerwick, 52 NY2d 557 [both decided herewith]), came about as a result of the dramatic increase in the number of parcels of land accorded tax-exempt status by respondent Kerwick, the Assessor of the Town of Hardenburgh, in 1977. It is undisputed that this increase was due to the enrollment, en masse, of 88% of the town’s landowners as officers in an allegedly religious denomination known as the Universal Life Church. It appears that all Universal Life Church members who sought an exemption received one. The facts in the petition, which for present purposes are assumed to be true, state that on April 27, 1977 Kerwick telephoned petitioner James Dudley and informed him that if he failed to become a Universal Life Church follower he, along with 12% of the remaining landowners, would have to pay the full $500,000 annual governmental expense of the town. Allegedly Kerwick also represented that as assessor, he intended to accept and approve all exemption applications filed by members of the Universal Life Church and that should petitioner Dudley desire to join he could do so at the town supervisor’s house. Dudley refused.

Within four months of the filing of the assessment roll, Dudley commenced this article 78 proceeding seeking to challenge Kerwick’s actions. Shortly thereafter, petitioner State of New York, a substantial landowner and taxpayer in the town, also brought an article 78 proceeding seeking essentially the same relief. In both proceedings, petitioners sued on behalf of themselves and other taxpayers similarly situated. Respondents moved to dismiss in both cases on various grounds including failure to state a cause of action, failure to join necessary parties and untimeliness. Special Term, treating the proceedings in a joint opinion, denied respondents’ motions to dismiss and allowed the matter to proceed as a class action on behalf of all nonexempt property owners. The Appellate Division reversed, based on its conclusion that article 7 of the Real Property Tax Law was petitioners exclusive method to challenge the exemptions, and that the 30-day Statute of Limitations contained in section 702 of the Real Property Tax Law had run. We disagree.

Historical background and a practical construction of article 7 of the Real Property Tax Law indicate that it was designed by the Legislature as a remedy for the taxpayer who wishes to challenge an excessive or illegal assessment on property in which he has an ownership interest (Matter of Board of Educ. v Parsons, 61 Misc 2d 838, 842). It was not designed to reach the unusual situation encountered here, where taxpayers concede the propriety of their own assessments, but seek instead to challenge the assessor’s action in granting wholesale exemptions to other properties within the town.

The ancestry of what is now article 7 can be traced back to the common-law writ of certiorari which allowed review of tax assessments only upon the limited grounds of an assertion of want of jurisdiction, or some basic illegality, as distinguished from errors in judgment on questions of fact or law (History of Tax Certiorari Proceedings, Fifthteenth Ann Report of NY Judicial Council, 1949, pp 324, 325). The function of the common-law writ, however, was not broad enough to provide review of assessments on the grounds that they were excessive or unequal (People ex rel. Kendall v Feitner, 51 App Div 196, 199) and to remedy this perceived defect in the common law, the first statutory certiorari proceeding to review tax assessments was enacted in 1880 (L 1880, ch 269). The tax certiorari proceeding subsequently was made a part of the Tax Law in 1896 (L 1896, ch 908, §§ 250-264), and in 1909 it was enacted as article 13 of the Tax Law (L 1909, ch 62) In 1959, article 4.3 was superseded by the provisions of article 7, which, insofar as we are here concerned, was not designed to make any substantive change (see Governor’s Memorandum, NY Legis Ann, 1958, p 496; Kilmer, Introduction to the Real Property Tax Law, reprinted in McKinney’s Cons Laws of NY, Book 49A, Real Property Tax Law [1960], p XXIII, at p XXXIII).

It is clear then that the tenor of article 7 is to provide an expeditious procedure by which the numerous and ex-pectable challenges by taxpayers of their own assessments can be resolved (Matter of Board of Educ. v Parsons, 61 Misc 2d 838, supra). It is reasonable in this situation that the Statute of Limitations be very short, because the taxpayer has before him, or can shortly assemble, all the pertinent facts demonstrating that his particular assessment is overvalued, illegal or unequal to others (Real Property Tax Law, § 706). Viewed in this light, Matter of Hellerstein v Assessors of Town of Islip (37 NY2d 1) properly was brought as an article 7 proceeding, even though the taxpayer challenged the legality of every assessment on the roll, because such a wholesale challenge was a logical derivation of the taxpayer’s challenge to the legality of her own assessment, on the ground that the assessor had failed to assess property in the taxing unit at full value (see Real Property Tax Law, § 306). But no such situation exists in this, case, where the taxpayers concede the legality of their own assessments, where activities of the assessor which are challenged pertain to many other parcels on the assessment roll, and where the facts must be developed concerning a multitiude of specific exemptions. Such a challenge is outside the scope and intent of article 7 and, accordingly, the Appellate Division was incorrect in applying the 30-day Statute of Limitations contained in article 7.

It being clear that petitioners do not challenge governmental action with regard to their specific assessments, the question remains whether the activity challenged falls within the ambit of CPLR article 78. The gist of the petitions is that they allege a broad perversion of the entire process of granting exemptions, with the resulting deterioration of the tax base and imposition on petitioners of a hugely disproportionate share of municipal expenses. Without doubt petitioners have alleged a wrong; the question is whether they have a remedy.

In arguing that they do not, respondents placed great reliance on an 1893 opinion of this court in the case of Van Deventer v Long Is. City (139 NY 133, 138) in which it was stated: “The question may be asked, what is the remedy of the taxpayer whose taxes are too high because some property has been omitted from the assessment roll? Where the omission is intentional he may prosecute the assessors criminally for taking a false oath to the assessment roll. His remedies may be very inadequate. But he is in the position of every citizen aggrieved by governmental action. He must appeal to public opinion and to the ballot, and use his efforts to procure the election of better or more competent assessors.”

The inherent flaw in this statement is clearly reflected in the present case. There is little likelihood that the populace of the Town of Hardenburgh will exercise the ballot to remove respondent Kerwick. In this town, if the petitions are to be believed, the only assessor likely to be removed is not the one who acts to create the injustice, but instead one who terminates it. It is precisely this type of tyranny of the majority which the Van Deventer rule endorses and for this reason we deem the above-quoted language ill-advised, as well as inconsistent with the more recent trend of liberalizing the ability of taxpayers to challenge governmental action (see Boryszewski v Brydges, 37 NY2d 361). Therefore, to the extent that Van Deventer is inconsistent with the result we reach in this case, it is expressly disapproved.

The petitioners here have alleged far more than erroneous determinations regarding some of the property in the town. They accuse the assessor of virtually ignoring statutory guidelines in granting exemptions to Universal Life Church members. In this situation, if we hold he may do so with impunity, we would, in essence, give assessors unbridled authority to create new grounds for exemption as they please, by the device of warping those statutory exemptions presently in effect. It is axiomatic that the Legislature, not the assessor has authority to create grounds for exemption from taxation. When an assessor grants exemption from taxation in wholesale fashion indicating that he has arrogated this legislative power to himself, he cannot cloak himself with protection surrounding individual discretionary decisions, and relief by way of an article 78 proceeding will lie.

To be sure, in view of the public interest against frequent second-guessing of assessment decisions, the burden the petitioners must carry in this case is not slight. However, we need not decide at this juncture whether this burden has been met, and it suffices to note that petitioners have alleged a broad conspiracy involving arbitrary and bad-faith abuses of the exemption process.

There remains to be discussed the procedural context in which this challenge is to go forward. As stated previously, the Special Term permitted the petitioners to sue as a class on behalf of themselves and other similarly situated taxpayers. The Appellate Division, however, declined to rule on the propriety of this device because of its erroneous view that the proceedings were time barred. For this reason a remittal is necessary to provide the Appellate Division with an opportunity to exercise its discretion.

We are also presented with the question as to whether the persons who enjoyed the religious exemptions from taxation should be joined as parties. Because, in essence, petitioners seek to have this significant privilege revoked, we think it beyond any doubt that these persons are necessary parties (see CPLR 1001; City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475; Siegel, New York Practice, § 132, pp 162-163). The petitioners have by their amended petition sought to join as a respondent class the exempted property owners. It is specifically recognized in CPLR 901 (subd a), that whereas joining respondents as a class may be appropriate, such joinder may present additional problems (see Siegel, New York Practice, § 146, pp 188-189). In any event, the intial determination in this regard is a matter of discretion which has not yet been exercised and is a matter to be addressed on remittal. Of course in the event that class treatment is found inappropriate, this does not rule out joinder in a more conventional fashion.

Accordingly, the orders of the Appellate Division should be reversed, and the matter remitted to that court for further proceedings in accordance with this opinion.

Gabrielli, J.

(dissenting). The majority in this case has approved the use of CPLÉ article 78 as a vehicle for challenging the wholesale omission of certain real properties from the tax rolls of a small community. Outraged by allegations in the petitions suggesting a flagrant abuse of the religious tax exemption in the Town of Hardenburgh, the majority posits that there must be a judicial remedy for the individual property owners who suffer the consequences of the tax assessor’s actions. As the majority recognizes, however, the rule articulated in Van Deventer v Long Is. City (139 NY 133, 138) presents an insuperable obstacle to affording the petitioning taxpayers a remedy in this case. Thus, the majority concludes, that 88-year-old precedent must be disregarded. Because I believe that the Van Deventer rule represents a sound policy of judicial abstention and respect for the political processes, I must respectfully offer my dissenting views.

It should be made clear that I do not sanction the actions allegedly taken by the tax assessor in this case. At this point in the litigation, the only question before the court is whether the petitioners have a legal right to maintain the present proceeding. Thus, I base my dissent only upon my colleagues’ decision to overrule the Van Deventer decision, in which this court unanimously held that a taxpayer may not maintain an action or proceeding to challenge the legality of the tax assessor’s decision to omit certain properties from the tax roll even though the taxpayer claims that the assessor acted fraudulently.

It has been observed that “[g]reat cases like hard cases make bad law” (Northern Securities Co. v United States, 193 US 197, 400 [Holmes, J.]). The import of this oft-quoted maxim is obvious. Cases which present a particularly sympathetic set of facts or which have received a high degree of notoriety may often tempt courts and Judges to adopt legal rules that serve well for the moment but cannot withstand the test of time. I am afraid that this case presents a classic illustration of the phenomenon.

The allegations in the petitions, if believed, point to a truly egregious set of circumstances. The town tax assessor, it is alleged, authorized the removal of some 88% of the property within the Town of Hardenburgh from the tax roll on grounds of religious exemption. The exemptions were obtained, according to the petitions, by individuals who claimed adherence to a rather formless religion known as the Universal Life Church, an apparently nondenominational organization with few, if any, recognizable religious tenets. The net result of the tax assessor’s action is that the 12% of the town’s property owners who are not adherents have been asked to shoulder the tax burden for the entire town. It is this set of circumstances which has led the other Judges of this court to conclude, quite understandably, that there must be a judicial remedy to combat “the tyranny of the majority” (p 551).

My colleagues’ reliance upon “loaded” phrases such as this, however, cannot obscure the flaw in their analysis. Our democratic system of government is founded upon the notion that, in most instances, the views and wishes of the majority are entitled to prevail. Indeed, the “tyranny of the majority”, which is decried by my colleagues in this case, is, in actuality, the norm in our political system. And, this is so even when a majority of the populace votes in such a way as to further its own parochial or financial interests and, in so doing, impairs the interests of the minority. The various bills of rights contained in the Federal and State Constitutions are the means we have chosen to check the prerogative of the majority when it wishes threaten to impede the fundamental freedoms of those individuals who happen to find themselves in the minority. Where none of these fundamental freedoms are involved and the laws are otherwise observed, however, there is no basis in law or logic for impeding the will of the majority. Hence, it is no objection to the Van Deventer rule to say that it “endorses” the “tyranny of the majority”.

Underlying the Van Deventer rule is the simple and sound principle, which my colleagues seem to have overlooked, that there need not be a judicial remedy to right every perceived wrong among citizens. Some controversies, particularly those involving the formulation or implementation of public policies, are not readily amenable to judicial resolution. These controversies, often referred to as non justiciable or “political” questions, are best left for resolution in the political or legislative arena. As we previously have had occasion to note, “[t]he power of the judiciary is as subject to * * * limitations as is that of the co-ordinate branches of government, for the spectre of judicial tyranny is no more palatable to a free people than is the threat of an uncontrolled executive or legislative branch” (Saxton v Carey, 44 NY2d 545, 549).

It is noteworthy that the problem which the other Judges of this court have chosen to address has already been remedied to a large extent without the need for resort to judicial intervention. In an apparent effort to close the “loophole” underlying the Hardenburgh situation, the Legislature has enacted an amendment to section 436 of the Real Property Tax Law which will have the effect of narrowing the availability of the religious tax exemption and, perhaps, preventing future Hardenburgh situations from arising (L 1978, ch 738; see Town of Hardenburgh v State of New York, 52 NY2d 536 [decided herewith]). Thus, contrary to my colleagues’ assertions, it simply cannot be said that the political process, represented in this case by the elected Legislature, is ineffectual in circumstances such as these.

I would also note that the majority’s effort to justify its holding today by drawing an analogy to the liberalized standards for taxpayers’ suits is unpersuasive. Our previous cases eliminating barriers to taxpayers’ suits and allowing citizens to challenge certain governmental actions have all dealt exclusively with the narrow question of the individual’s “standing” to assert an admittedly justiciable claim (see, e.g., Wein v Carey, 41 NY2d 498; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Boryszewski v Brydges, 37 NY2d 361; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; but see Wein v Comptroller of State of N. Y., 46 NY2d 394). None of those cases, however, suggest any fundamental shift in the court’s approach to the separate and distinct question of justiciability (Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; see Saxton v Carey, 44 NY2d 545, supra). Thus, they provide no support for the majority’s position in this case.

The majority’s decision to overrule Van Deventer completely rather than attempting to distinguish that holding from the peculiar circumstances presented here is bound to give rise to certain unfortunate practical consequences which the majority does not appear to have anticipated in its writing. Specifically, now that the majority has decided that Van Deventer is no longer the law in this State, there is presumably nothing to prevent individual property owners from routinely bringing article 78 proceedings to challenge the tax assessor’s decision to grant , a tax exemption to one or more of their neighbors on grounds of illegality. Indeed, when stripped to its essentials, the holding of the majority is simply that article 78 may be used by a property owner to challenge the favorable tax treatment, in any form, accorded to another as long as the allegations in the pleadings “accuse the assessor of virtually ignoring statutory guidelines”. I consider this situation to be a highly undesirable one, since although individual property owners rarely have a substantial financial stake in the amounts collected from their fellow taxpayers, petty jealousies and rivalries may lead them to utilize the procedure authorized in this case to bring vexatious lawsuits.

For all of these reason, I respectfully dissent and cast my vote to affirm the decision of the Appellate Division dismissing the petitions.

Judges Jasen, Jones, Fuchsberg and Meyer concur with Judge Wachtler ; Judge Gabrielli dissents and votes to affirm in a seprate opinion; Chief Judge Cooke taking no part.

Order reversed, with costs, and matters remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

      . Article 13 was completely revised in 1949 to eliminate some anachronistic procedural formalities, but the substantive nature of the proceeding remained unchanged (Fifteenth Ann Report of NY Judicial Council, 1949).

      . The dissenter’s suggestion that the “tyranny of the majority” is the political norm misses the point. In no way do we suggest that the people’s will as expressed in an election is to be circumvented by judicial proceedings. The issue of religious exemptions was never approved in Hardenburg — even if it had, approval by local referendum cannot justify actions of an assessor in direct contravention of State law. It is the Legislature, not the town assessor, which determines the qualifications for exemption. In this instance emphasis on the sanctity of the elective process is more appropriately placed on lawful enactments of the duly elected State Legislature.

      . Joining respondents as a class may well pose a problem in this case in the event that further development of the record indicates that the situation of each exempted landowner poses differing facts reflecting on the legitimacy of the exemption.


source: Caselaw Access Project

author: Wachtler, J.

license: Public Domain

text:
    In the Matter of State Board of Equalization and Assessment, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 1.) In the Matter of the State Board of Equalization and Assessment, Appellant, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. In the Matter of Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Appellants, v State Board of Equalization and Assessment, Respondent. (Proceeding No. 2.) State Board of Equalization and Assessment et al., Appellants, v Robert Kerwick, as Assessor of the Town of Hardenburgh, et al., Respondents. (Proceeding No. 3.)
    Argued February 11, 1981;
    decided April 30, 1981

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Franklin K. Breselor of counsel), for appellants in the first and third above-entitled proceedings.
    I. The State Board of Equalization and Assessment properly proceeded under article 2 of the Real Property Tax Law, not article 7, since it was not reviewing individual assessments, but was reviewing a general practice of the local assessors in determining taxable status. Further, the respondents were afforded due process of law. (C.H.O.B. Assoc. v Board of Assessors of County of Nassau, 45 Misc 2d 184, 22 AD2d 1015, 16 NY2d 779; Sonmax, Inc. v City of New York, 43 NY2d 253; Alford v United States, 282 US 687; Matter of Epstein v Cort Watch Co., 7 AD2d 663; Hannah v Larche, 363 US 420; Matter of Shermack v Board of Regents of Univ. of State of N. Y., 64 AD2d 798.) II. Proceeding No. 1 brought pursuant to section 202 of the Real Property Tax Law was improperly dismissed. SBEA’s authority under this section is separate and independent from its powers under section 216 (exercised in Proceeding Nos. 2 and 3). (Matter of Bolden v Blum, 68 AD2d 600, 48 NY2d 946, 49 NY2d 801; Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194; Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Carr v Hoy, 2 NY2d 185.) III. Special Term’s summary disposition in Proceeding No. 3 neither deprived respondents of any notice required by law nor resulted in any surprise or prejudice to them as a matter of fact. (O’Hara v Del Bello, 47 NY2d 363; Maybrown v Malverne Distrs., 57 AD2d 548; Mareno v Kibbe, 32 AD2d 285; Matter of Lefkowitz v McMillen, 57 AD2d 979.)

      Stephen L. Oppenheim for respondents in the first above-entitled proceeding.
    I. Applicant is limited to enforcement procedures contained in subdivision 2 of section 216 of the Real Property Tax Law. (Matter of State Bd. of Equalization & Assessment v Kerwick, 91 Misc 2d 152; Matter of Morris v Hayduk, 45 NY2d 793; Matter of Higby v Mahoney, 48 NY2d 15; Van Deventer v Long Is. City, 139 NY 133; People ex rel. Marsh v Delaney, 49 NY 655; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD2d 651; Matter of Allen Sq. Co. v Krieger, 217 App Div 123; People ex rel. Onderdonk v Supervisors of Queens County, 1 Hill 195.) II. Appellant’s memorandum of April II, 1977 was not binding on respondents, being advisory only. (People v Cull, 10 NY2d 123; Matter of Sturman v Ingraham, 52 AD2d 882; Wirtz v Lobello, 1 AD2d 416; Dubendorf v New York State Educ. Dept., 97 Misc 2d 382, 71 AD2d 837; Percy v Brennan, 384 F Supp 800; Matter of Swalbach v State Liq. Auth. of State of N. Y., 7 NY2d 518; Matter of Howard v Wyman, 28 NY2d 434; Matter of Albano v Kirby, 36 NY2d 526; Matter of Hirschfeld v Feuer, 35 NY2d 176; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137.) III. The SBEA’s present, all-encompassing denial of exemptions to Universal Life Church churches is invalid. (Matter of Swalbach v State Liq. Auth. of State of N. Y., 7 NY2d 518; Matter of Sturman v Ingraham, 52 AD2d 882; Matter of Barry v O’Connell, 303 NY 46.) IV. Appellant improperly decided church status without a hearing on the merits. (United States v Kuch, 288 F Supp 439; Fowler v Rhode Island, 345 US 67; United States v Ballard, 322 US 78; United States v Seeger, 380 US 163; Theriault v Carlson, 495 F2d 390; Hundley v Sielaff, 407 F Supp 543; Theriault v Silber, 391 F Supp 578; Remmers v Brewer, 361 F Supp 537, 494 F2d 1277, 529 F2d 656.) V. The SBEA’s memorandum is incorrect in concluding that “no fact situation has been presented” which would warrant granting exemptions to Universal Life Church churches. (Gillette v United States, 401 US 437; Epperson v Arkansas, 393 US 97; Abington School Dist. v Schempp, 374 US 203; Fowler v Rhode Island, 345 US 67; Zorach v Clauson, 343 US 306; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Order Minor Conventuals v Lee, 64 AD2d 277; Greater N. Y. Corp. of Seventh-Day Adventists v Town of Dover, 29 AD2d 861; Matter of New York Conference Assn. of Seventh-Day Adventists v Schenck, 279 App Div 845, 304 NY 706; Matter of Mary Immaculate School of Eagle Park [Board of Assessors, Town of Ossining], 188 App Div 5.) VI. Since Kerwick had complied with appellant’s subpoena, his failure to comply and appellant’s alleged ignorance cannot be grounds for relief. (People ex rel. Haile v Brundage, 195 App Div 745; Matter of Bertholf v Cisco, 72 Misc 2d 901.) VII. Appellant’s allegations of a conspiracy do not allow it to maintain this proceeding. (Sharkey v Thurston, 268 NY 123; Matter of Kaney v New York State Civ. Serv. Comm., 190 Misc 944, 273 App Div 1054, 298 NY 707; Cooke v Dodge, 164 Misc 78, 254 App Div 808.) VIII. The exempt property owners are now necessary parties to this proceeding. (Overing v Foote, 65 NY 263; People ex rel. Hoesterey v Taylor, 210 App Div 196; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550; Matter of Vergari v Ward, 88 Misc 2d 911; Matter of Castaways Motel v Schuyler, 24 NY2d 120; Matter of Skliar v Board of Educ., 45 AD2d 1012; Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222.) IX. The proceeding is moot. X. The court can no longer grant effective relief herein.

      Stephen L. Oppenheim for Robert Kerwick and others, appellants in the second above-entitled proceeding.
    I. The State Board of Equalization and Assessment did not follow the procedures mandated by the Legislature in section 216 of the Real Property Tax Law. II. The assessors have the right to be heard in the courts on the sufficiency of the hearing afforded them. (Matter of State Bd. of Equalization & Assessment v Kerwick, 72 AD2d 292; Wisconsin v Constantineau, 400 US 433; Board of Regents v Roth, 408 US 564; Perry v Sindermann, 408 US 593; Matter of New

      York Edison Co. v Maltbie, 271 NY 103; Matter of Reeves v Golar, 45 AD2d 163; Matter of Munter v Gross, 42 Misc 2d 690 ; Matter of Schutt v Macduff, 205 Misc 43; Matter of Legislature of County of Rockland v New York State Public Serv. Comm., 49 AD2d 484; Matter of Leroy Fantasies v Swidler, 44 AD2d 266.) III. The assessors are entitled to a fair hearing under due process standards. (Matter of Greenbaum v Bingham, 201 NY 343; Matter of Hecht v Monaghan, 307 NY 461; People ex rel. Hirschberg v Board of Supervisors of County of Orange, 251 NY 156; Matter of Roge v Valentine, 280 NY 268; People ex rel. Consolidated Water Co. of Utica v Maltbie, 275 NY 357; Matter of Ryan v New York State Liq. Auth., 273 App Div 576; Matter of Merritt v Swope, 267 App Div 519; Fostner v Morawitz, 215 App Div 176; Matter of Townley v Bruckman, 168 Misc 422; Matter of Papasidero v Fasano, 19 NY2d 440.) IV. The assessors did not have notice of any proceedings against them. (Goldberg v Kelly, 397 US 254; Matter of Murray v Murphy, 24 NY2d 150; Matter of Hecht v Monaghan, 307 NY 401; Matter of Hilton Hotels Corp. v Epstein, 14 AD2d 399, 11 NY2d 978; Merritt v Swope, 267 App Div 519; Matter of Kern v La Guardia, 264 App Div 627, 289 NY 776; Matter of Bender v Board of Regents of Univ. of State of N. Y., 262 App Div 627; Matter of Silverstein v Mealey, 259 App Div 854; Matter of Ahsaf v Nyquist, 37 NY2d 182.) V. The assessors were denied the opportunity to be heard. (Grannis v Ordean, 234 US 385; Stuart v Palmer, 74 NY 183; Matter of Pannell v Jones, 36 NY2d 339; Helfrick v Dahlstrom Metallic Door Co., 256 NY 199, affd sub nom. Dahlstrom Metallic Door Co. v Industrial Bd. of N. Y., 284 US 594; Matter of Bender v Board of Regents of Univ. of State of N. Y., 262 App Div 627; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550; Matter of Hauch v McGoldrick, 200 Misc 628; Matter of Socony Vacuum Oil Co. v Murdock, 165 Misc 713; Matter of Simpson v Wolansky, 38 NY2d 391.) VI. The assessors’ right to confront the witnesses against them was denied. (Goldberg v Kelly, 397 US 254; Matter of Greenbaum v Bingham, 201 NY 343; Matter of Wignall v Fletcher, 278 App Div 28, 303 NY 435; Matter of Merritt v Swope, 267 App Div 519; Matter of Lipschitz v Mealey,
      259 App Div 640; Matter of Hecht v Monaghan, 307 NY 401; Matter of Switsky v Herman, 10 AD2d 959; Matter of Williams v Du Mond, 282 App Div 76; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Neshaminy, Inc. v Hastings, 64 AD2d 830.) VII. The assessors’ right to cross-examine the witnesses was denied. (Goldberg v Kelly, 397 US 254; Matter of Hecht v Monaghan, 307 NY 401; Matter of Greenbaum v Bingham, 201 NY 343; Matter of Wignall v Fletcher, 278 App Div 28, 303 NY 435; Matter of Lipschitz v Mealey, 259 App Div 640; Matter of Williams v Du Mond. 282 App Div 76; Matter of Heaney v McGoldrick, 286 NY 38; Matter of New York Water Serv. Corp. v Water Power & Control Comm. of State of N. Y., 283 NY 23; Matter of 245 Elmwood Ave. v New York State Liq. Auth., 14 AD2d 393, 11 NY2d 980; Matter of Epstein v Cort Watch Co., 7 AD2d 663.) VIII. The SBEA’s general counsel had no authority to conduct hearings and report under subdivision 2 of section 216 of the Real Property Tax Law. (Matter of Munter v Gross, 42 Misc 2d 690; Morgan v United States, 298 US 468.) IX. The SBEA improperly found the assessors guilty in the alternative and the findings are inadequate. (Matter of Simpson v Wolansky, 38 NY2d 391.)

      Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Franklin K. Breselor of counsel), for State Board of Equalization and Assessment, respondent in the second above-entitled proceeding.
    I. The administrative proceedings were conducted in full observance of the statutory authority for them and of petitioners’ rights. II. Neither the taxpayers who received Universal Life Church exemptions nor Kerwick on their behalf have carried the burden of proving their entitlement thereto. (Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N. Y., 16 NY2d 222; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Matter of Presbyterian Residence Center Corp. v Wagner, 66 AD2d 998, 48 NY2d 885; Matter of Di Marsico v Ambach, 48 NY2d 576; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)

      Stephen L. Oppenheim for respondents in the third above-entitled action.
    I. Special Term improperly and unconstitutionally granted judgment. (O’Hara v Del Bello, 47 NY2d 363; Maybrown v Malveme Distrs., 57 AD2d 548; Matter of Lefkowitz v McMillen, 57 AD2d 979; Mareno v Kibbe, 32 AD2d 285; Lustig v Congregtion B’nai Israel of Midwood, 62 Misc 2d 216; Kreshik v St. Nicholas Cathedral, 363 US 190; N. A. A. C. P. v Alabama, 357 US 449; Harte v Adelphi Univ., 63 Misc 2d 228; Hallock v State of New York, 39 AD2d 172, 32 NY2d 599; Data-Guide v Dennis, 15 Misc 2d 679.) II. The town official respondents had jurisdiction to exempt and therefore their decisions may not be attacked collaterally. (Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; People ex rel. Buffalo & Fort Erie Public Bridge Auth. v Davis, 163 Misc 192; National Bank of Chemung, of Elmira v City of Elmira, 53 NY 49; Whitney v Thomas, 23 NY 281; Van Voorhis v County of Monroe, 288 NY 138; Autokefalos Orthodox Spiritual Church of St. George v City of Mount Vernon, 282 App Div 725; Van Deventer v Long Is. City, 139 NY 133; People ex rel. Hoesterey v Taylor, 210 App Div 196; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451.) III. The first three causes of action are properly treated as an article 78 or other statutory review proceedings. (Board of Educ. v Allen, 25 AD2d 659; Lane v Nyquist, 59 AD2d 755; Matter of Dubbs v Board of Assessment Review of County of Nassau, 46 AD2d 651; Przyborowski v O’Connell, 272 App Div 1096, 297 NY 940; Colson v Wilson, 205 Misc 32; Hearst Corp. v New York, 204 Misc 584; Matter of State Bd. of Equalization & Assessment v Berwick, 72 AD2d 292; Frank v Levitt, 47 NY2d 853; Henry v Metropolitan Dade County, 329 F Supp 780; Klotz v Consolidated Edison Co. of N. Y., 386 F Supp 577.) IV. Treated as an article 78 proceeding or an action for declaratory judgment this action is barred by the Statute of Limitations. (Press v Monroe County, 50 NY2d 695; Solnick v Whelan, 49 NY2d 224; Frank v Levitt, 47 NY2d 853; Matter of Dells, Inc. v Ossman, 15 Misc 2d 237; Rose v Elliott, 218 App Div 287; Matter of Winter v Board of Assessors of County of Nassau, 63 Misc 2d 451; Campbell v Nassau County, 273 App Div 785; Timmerman v Board of Educ., 272 App Div 1075.) V. Service on the individually named defendants was constitutionally and statutorily invalid. (Dobkin v Chapman, 21 NY2d 490; Board of Educ. v Zeluck, 60 Misc 2d 1090; Mullane v Central Hanover Trust Co., 339 US 306.) VI. The anonymously named defendants are not before the court. (Mullane v Central Hanover Trust., 339 US 306; Schroeder v City of New York, 371 US 208.) VII. The court does not have personal jurisdiction over necessary parties defendant, either in regard to the action or to appellants’ motion. (Stuart v Palmer, 74 NY 183; People ex rel. Hoesterey v Taylor, 210 App Div 196; Matter of Utica Sheet Metal Corp. v County of Tompkins, 40 AD2d 567; Russell v City of New York, 22 AD2d 706, 16 NY2d 641; Matter of Pacifica Foundation v Lewisohn, 79 Misc 2d 550.) VIII. Neither the SBEA nor the State, acting as sovereign, has standing to bring this action. IX. The fourth cause of action was properly dismissed. (Rottkamp v Young, 21 AD2d 373, 15 NY2d 831; Sanchez v Village of Liberty, 42 NY2d 876; Bernkrant v State of New York, 26 AD2d 964; Erving v Mayor, Aldermen & Commonality of City of N. Y., 131 NY 133; People ex rel. Coughlin v Gleason, 121 NY 631; Instalment Dept. v State of New York, 21 AD2d 211; Harrington v Norco Fruit Distrs., 70 Misc 2d 471; East Riv. Gas-Light Co. v Donnelly, 93 NY 557; People v Thompson, 58 Misc 2d 511.) X. Appellants concede that in this proceeding respondent officials are entitled to test whether due process has been afforded them. (Goldberg v Kelly, 397 US 254; Armstrong v Manzo, 380 US 545; Grannis v Ordean, 234 US 385; Matter of Simpson v Wolansky, 38 NY2d 391; Matter of Pannell v Jones, 36 NY2d 339; Matter of Hecht v Monaghan, 307 NY 401; People ex rel. Consolidated Water Co. of Utica v Maltbie, 275 NY 357; People ex rel. Hirschberg v Board of Supervisors of County of Orange, 251 NY 156; Matter of Greenbaum v Bingham, 201 NY 343.)
   OPINION OF THE COURT

Wachtler, J.

On these three appeals, which are considered together because of their common factual and legal background, we are once again, concerned with controversies arising out of the granting by the respondent tax assessor of exemptions from real property taxation to members of the Universal Life Church. In the main, all three appeals involve efforts by the State Board of Equalization and Assessment (SBEA) to prevent these exemptions. The central issue for our determination in whether the SBEA has authority to engage in that effort. The Appellate Division held it does not. We agree.

I

In April of 1977, the SBEA formally exhibited its concern with the proliferation of religious tax exemptions to members of the Universal Life Church by issuing a 28-page memorandum designed to “assist” local assessors in their determinations regarding exemptions. The succinct conclusion of this document, in addition to its statement that “it must be emphasized that the taxable status of each parcel * * * is dependent upon the facts developed for each parcel and the owner thereof”, is that “[n]o fact situation has been presented * * * which * * * would entitle real property owned by a ULC [Universal Life Church] member to either a total * * * or a partial exemption”. Nonetheless, the memorandum was ineffective to. stem the tide of exemptions, and, in response, the SBEA commenced the first entitled proceeding. The petition sought: a declaration that the 1977 tentative assessment roll is void; to enjoin certain named respondents from taking any action to establish the tentative assessment roll as the final assessment roll for 1977; and directing respondent Kerwick to restore to the taxable portion of the tentative assessment roll all real property granted exemptions in an arbitrary, capricious or unlawful manner.

The statutory authority upon which SBEA relied for initiation of this proceeding is found in section 202 of the Real Property Tax Law, which in pertinent part states:

“Powers and duties of state board

“1. The board shall: * * *

“(g) Furnish assessors with such information and instructions as may be necessary or proper to aid them in making assessments, which instructions shall be followed and compliance with which may be enforced by the board”.

SBEA vigorously contends that this is a self-executing mandate to compel adherence to SBEA instructions through immediate judicial proceedings, without there being any necessity to comply with the preliminaries for such review as set forth in subdivision 2 of section 216 of the Real Property Tax Law. That statute, however, appears to contemplate otherwise in its statement that: “[Wjhenever it appears to the satisfaction of the board that any assessor or other public officer or employee whose duties relate to assessments has failed to comply with the provisions of this chapter or any other law relating to such duties, or the rules and regulations of the board made pursuant thereto, after a hearing on the facts, the board may issue its order directing such assessor, officer or employee to comply with such law, rule or regulation, and if such assessor, officer or employee shall neglect or refuse to comply therewith within the period of ten days after service on him of such order, the board may apply to a justice of the supreme court for a summary order to compel him to comply with such law* rule or regulation, and the justice shall have power to issue such order” (Real Property Tax Law, § 216, subd 2; emphasis added).

We are not convinced by the argument of SBEA that section 202 authorizes prompt judicial review without these procedural safeguards, merely because prompt judicial attention in some instances might serve to dispose of the matter prior to the finalization of the assessment roll. Of course, expediting the contemplated proceedings would serve a salutory purpose, but it is for the Legislature to make this summary method available. This the Legislature has not done, and, without such a stated limitation, section 202 would provide a serious loophole for wholesale avoidance of the obvious concerns reflected in section 216. We reject, therefore, SBEA’s broad interpretation of section 202 and hold, in agreement with the Appellate Division, that in view of SBEA’s conceded failure to comply with section 216, the petition was properly dismissed.

II

After the decision at Special Term in the proceeding discussed above, SBEA began procedures designed to comply with section 216. Subpoenas were issued, and eventually the respondent assessors from the Towns of Hardenburgh, Liberty, Rochester, and New Paltz, appeared before the SBEA for a hearing. After having heard the testimony, the hearing officer concluded that exemptions to Universal Life Church members had been improperly granted, and found that the affected real property should be restored to the nonexempt portion of the assessment rolls. The SBEA agreed and issued orders directing each town assessor to petition the town board of assessment review to remove the affected properties from the exempt portions of the roll. When the assessors failed to comply within 10 days (see Real Property Tax Law, § 216, subd 2), SBEA instituted a CPLR article 78 proceeding to enforce compliance. The petition was granted to the extent of ordering that the parcels be placed on the assessment rolls as omitted properties (see Real Property Tax Law, § 551).

During the pendency of the proceeding, the assessors commenced an article 78 proceeding of their own, seeking to challenge the SBEA hearing and orders on various grounds. SBEA moved to dismiss this proceeding and the motion was granted.

The respondent assessors appeal both of the above orders to the Appellate Division, which considered the matters together. The Appellate Division reversed both orders due to irregularities which it found in the hearing process, and because the court concluded that the respective directives of the SBEA to the assessors were beyond that agency’s jurisdiction.

It is clear that from the outset of the administrative procedures, the SBEA objective was to influence substantive determinations of the assessors regarding exemptions. At the threshold, then, is to determine whether the SBEA had the power to involve itself in this process. Because we agree with the Appellate Division that SBEA did not have this power, we do not reach issues concerning alleged defects in the administrative hearing process. Because the issue concerning the jurisdiction and power of the SBEA also is raised in the third entitled appeal, we defer our discussion to that portion of this opinion.

Ill

The third proceeding was commenced by the SBEA and the State which is suing in its capacity as an affected local landowner. This third attempt by SBEA to obtain compliance with its view as to the Universal Life Church exemptions was initiated in response to the respondent assessors’ action subsequent to the previously discussed orders of Special Term (see heading II, supra). In what SBEA characterizes as an attempt to circumvent those orders, the assessors held grievance procedures for those taxpayers who were threatened with the loss of their exemptions. These procedures culminated in uniform determinations by the assessors that the properties should remain exempt. Thus, although the properties were temporarily rendered nonexempt, they were ultimately placed on the exempt portion of the 1978 assessment rolls. At Special Term, the court concluded that this had been done with arbitrary and capricious disregard for the law. However, the Appellate Division reversed, and while other issues were considered, it concluded that due to limitations on the powers of the SBEA the agency had no authority to enforce compliance with its views regarding the exemptions. Accordingly the petition was dismissed.

The Appellate Division also dismissed the suit brought by the State as a landowner based in part on its conclusion that the State was relegated to the exclusive remedy of an article 7 proceeding (see Real Property Tax Law, art 7). While we disagree with this argument that article 7 was the State’s exclusive remedy (see Matter of Dudley v Kerwick, 52 NY2d 542, [decided herewith]), we conclude nonetheless that reversal of the order of Special Term was appropriate for the additional reason relied on by the Appellate Division, that Special Term erroneously converted a motion to dismiss into one for summary judgment, without proper notice to the parties of its intent to do so (see CPLR 3211, subd [c]).

On the issue of the jurisdiction of the SBEA to initiate the proceeding under review, though we agree with the court below, the significance of this holding requires that we engage in some discussion of that agency’s history and purpose.

In the history of our State there have been other bodies known as the Board of Equalization and Assessment (Kilmer, Introduction to the Real Property Tax Law [1960]), but the present SBEA began its existence in the form of a temporary commission created in 1949 (L 1949, ch 346). The impetus for its creation was a legislative concern that the then existing equalization rates had gradually been rendered inaccurate by increases in property values during economic inflation during the aftermath of World War II (Kilmer, Introduction to the Real Property Tax Law; see, also, L 1949, ch 346, § 1 [legislative determinations]; Matter of Town of Smithtown v Moore, 11 NY2d 238, 241; Guth Realty v Gingold, 34 NY2d 440, 448). The temporary commission, known as the State Board of Equalization and Assessment, faced the immediate task of revising the old State equalization rates, and offering recommendations on the continuation of this essential function in the future (L 1949, ch 346, §§ 3, 12). It is significant, we think, that the broad devolution of powers and duties on the new commission, though not purporting to be exclusive, contained no authorization for substantive input, much less control, by the SBEA in the individualized local assessment process (L 1949, ch 346, § 3).

The temporary commission was continued under express statutory enactment until April 1, 1960 when the board was reconstituted as a permanent State agency (L 1960, ch 335; Real Property Tax Law, §§ 200-216; see Matter of Town of Smithtown v Moore, swpra). However, it is clear that at this time the essential function of the agency was not to change; it remained authorized to advise on assessment matters, keep current equalization rates, and perform certain other functions with which we are not now concerned (see Governor’s Memorandum, NY Legis Ann, 1960, p 482; also reprinted at McKinney’s Session Laws of NY, 1960, p 2007).

The current wording of section 202 of the Real Property Tax Law, which concerns the power of the SBEA, is apparently to the same effect as the legislative history. The SBEA is possessed of “general supervision of the function of assessing”, and may “[f]urnish assessors with such information and instructions as may be necessary or proper to aid them in making assessments, which instructions shall be followed and compliance with which may be enforced by the board” (Real Property Tax Law, § 202, subd 1, pars [e], [g]; emphasis added). Thus the statute grants authority “to aid” in the assessments; conspicuously absent is an authorization to direct substantive assessment decisions. Were we to adopt SBEA’s broad interpretation of its powers, that they may enforce their conclusion on any assessor that a specific exemption or group of exemptions are erroneous under the law, and therefore illegal (cf. Real Property Tax Law, § 216, subd 2), there would be no logical end to the process. In a sense, every erroneous assessment involves some illegality (City of Mount Vernon v State Bd. of Equalization & Assessment, 44 NY2d 960, 962), but the illegality which the SBEA is empowered to prevent is only that falling in the ambit of its procedural functions.

Practical problems also ensue if we establish the jurisdiction and authority which the SBEA seeks. It is conceded by the SBEA that the assessor’s determination with regard to exemptions is an individualized process, and yet it argues that it seeks to hold the assessors accountable for broad patterns of exemptions. It is difficult to see how this board instruction against Universal Life Church exemptions could be translated into concrete enforcement. It is in this very proceeding that the assessors allegedly circumvented the broad instruction by a multitude of “individual” redeterminations on grievance day. Although this too is characterized by the SBEA as an illegal action, it would seem wrong to suggest that the exemptions would still be voidable by a single blow administered by the SBEA. Certainly, to allow such a binding determination without providing an opportunity for each affected landowner to be heard would violate due process (see Matter of Dudley v Kerwick, 52 NY2d 542, supra [decided herewith]).

All of this makes apparent the fact that the SBEA is seeking to go beyond its intended scope of procedural regulation. In determining the authority claimed by the SBEA was legislatively intended we must also consider the active participation by that agency in this complex and expensive litigation. SBEA can point to no specific legislative authorization to undertake it. We cannot, therefore, reasonably conclude that this activity was intended to be within the SBEA’s authority for “general supervision of the function of assessing” (Real Property Tax Law, § 202, subd 1, par [e]).

Finally we note that nothing we have said should reflect adversely on the propriety of the preparation and distribution of the instructional memorandum dealing with religious property exemptions. The availability of such information is undoubtedly valuable in this problematical area. The enforcement of the views it contains, however, is an entirely different matter.

Accordingly, the orders of the Appellate Division should be affirmed, with costs.

Judges Jasen, Gabrielli, Jones, Fuchsberg and Meyer concur; Chief Judge Cooke taking no part.

In each case: Order affirmed, with costs.

       The constitutional arguments which petitioners made in this proceeding were dismissed on the merits as unsupported on the record. Other arguments were deemed precluded by the determination in the related SBEA instituted proceeding.


author: Jasen, J.

text:
    Aspen Industries, Inc., Respondent, v Marine Midland Bank, Appellant.
    Argued March 25, 1981;
    decided May 5, 1981

      POINTS OF COUNSEL

      Fred G. Aten, Jr., and Donald S. Mazzullo for appellant.
    I. Marine Midland Bank did not violate the restraining notice served upon it by Aspen Industries, Inc. Marine Midland Bank did not forfeit its superior right of offset by virtue of its failure to exercise such right immediately upon receipt of the restraining notice. (Baker v National Citi

      bank of Cleveland, 511 F2d 1016; Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639; Matter of City of New York [Nassau Expressway], 56 Misc 2d 602; Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121; City of New York v Panzirer, 23 AD2d 158; Matter of H & H Poultry Co. v Lafayette Nat. Bank, 45 Misc 2d 480; Matter of Graze v Bankers Trust Co., 45 Misc 2d 610.) II. If Marine Midland Bank has violated the restraining notice served upon it by Aspen Industries, Inc., Aspen Industries, Inc., has suffered no injury by virtue of the violation and is not entitled to damages as a result of said violation. (Nardone v Long Is. Trust Co., 40 AD2d 697.)

      Vincent A. O’Neil for respondent.
    I. Marine chose to exercise its right of setoff to the extent of $27,622.32 and no more. (Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639: Baker v National Citibank of Cleveland, 511 F2d 1016.) II. Marine could not pay whomever it chose and ignore the retraining notice. (Matter of Sumitomo Shoji N.Y. v Chemical Bank N. Y. Trust Co., 47 Misc 2d 741, 25 AD2d 499; Mazzuka v Bank of North Amer., 53 Misc 2d 1053; Nardone v Long Is. Trust Co., 40 AD2d 697; Ray v Jama Prods., 74 AD2d 845.)
   OPINION OF THE COURT

Jasen, J.

This appeal concerns the effect of a restraining notice served upon a bank pursuant to CPLR 5222. At issue is whether a garnishee bank violates a restraining notice served upon it by disbursing funds from the account of a judgment debtor notwithstanding the fact that the bank maintains a balance in the account which is in excess of twice the amount owed on the judgment. Also involved is the interplay between the garnishee bank’s right of setoff under section 151 of the Debtor and Creditor Law and the judgment creditor’s rights under CPLR 5222.

The facts which give rise to the present controversy are not in dispute. On July 20, 1978, Aspen Industries, Inc. (Aspen), obtained a judgment against J. D. Whiting, Inc. (Whiting), in the amount óf $6,838.80. Thereafter, Whiting paid $2,000 to Aspen on this judgment, leaving a balance of $4,838.80 still owing. At the time, Whiting had an account at Marine Midland Bank (Marine) and, on October 11,1978, Aspen caused a restraining notice to garnishee to be served on Marine pursuant to CPLR 5222. The restraining notice directed Marine not to transfer or otherwise dispose of any of the moneys “contained in a checking and/or savings account in the name of J. D. Whiting, Inc.” As of the date the restraining notice was served, the Whiting account at Marine had a balance of $838.51.

Notwithstanding receipt of the restraining notice, Marine allowed the Whiting account to remain active. On October 12, 1978, a deposit of $18,456.81 was made to the account. On October 13, 1978, approximately $8,000 in checks on the Whiting account payable to parties other than Aspen were honored by Marine and additional deposits aggregating in excess of $13,000 were accepted. Finally, on October 16, 1978, five days after the restraining notice was served, $10,000 was placed in the Whiting payroll account, a check for $1,000 was paid to one “M. Bednarcyk” and a check for $163.69 was paid to Marine itself. At this point, Marine exercised its right of setoff under section 151 of the Debtor and Creditor Law, paying over to itself the remaining balance in the Whiting account in the amount of $27,622.32. This setoff was in partial satisfaction of $124,-597.64 owed by Whiting to Marine on a note which Whiting had defaulted on prior to service of the restraining notice by Aspen.

The present proceeding was then instituted by Aspen pursuant to CPLR 5227 seeking judgment in the amount of $4,846.51, plus interest and costs, for Marine’s alleged violation of the restraining notice. Special Term granted Marine’s motion to dismiss the petition, stating that, inasmuch as Marine had a superior right of setoff under section 151 of the Debtor and Creditor Law in an amount greatly in excess of Aspen’s judgment at all times during which the restraining notice was in effect, Aspen had failed to establish that it was damaged by Marine’s activities in allowing the Whiting account to remain active after service of the notice upon it.

On appeal, a divided Appellate Division reversed and granted the petition. The majority held that Marine, by keeping the Whiting account open after service of the restraining notice, was liable to Aspen for damages. According to the majority, the “belated exercise by the Bank of its right of setoff created a superior right in Aspen to the funds set aside in compliance with CPLR 5222.” (74 AD2d, at p 63.) The dissenting Justices, while agreeing that Marine had violated the restraining notice, were of the view that Aspen had failed to establish that it was damaged by this violation since the funds in the Whiting account were at all times relevant subject to Marine’s superior right of setoff. There should be a reversal.

Among the various enforcement devices available to a judgment creditor under CPLR article 52 is the restraining notice. A party served with such a notice “is forbidden to make or suffer any sale, assignment, transfer or interference with any [of the judgment debtor’s] property * * * to any person other than the sheriff, except upon direction of the sheriff or pursuant to an order of the court”. (CPLR 5222, subd [b].) Thus, the restraining notice serves as a type of injunction prohibiting the transfer of the judgment debtor’s property. This notice may be served on either the judgment debtor himself or, as in the present case, upon a third-party “garnishee” — a person who owes a debt to the judgment debtor or who is in possession of property in which the judgment debtor has an interest. (CPLR 105, subd [i].) When served upon a garnishee, the injunctive effect of the restraining notice continues for one year or until such time as the judgment is satisfied or vacated, whichever occurs first, and extends to property both “then in and thereafter coming into the possession or custody” of the garnishee. (CPLR 5222, subd [b]; see, generally, Siegel, New York Practice, § 508.)

In contrast with prior law (see Civ Prac Act, §§ 799-a, 808; Matter of Wickwire Spencer Steel Co. v Kemkit Scientific Corp., 292 NY 139, 142; see, generally, Distler & Schubin, Enforcement Priorities and Liens: The New York Judgment Creditor’s Rights in Personal Property, 60 Col L Rev 458, 476-478, 499-506), service of a CPLR 5222 restraining notice confers no priority upon the judgment creditor in the form of a lien on the judgment debtor’s property. (See Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121; City of New York v Panzirer, 23 AD2d 158; Matter of H & H Poultry Co. v Lafayette Nat. Bank, 45 Misc 2d 480; see, generally, 6 Weinstein-KornMiller, NY Civ Prac, par 5222.21.) Therefore, a judgment creditor serving a restraining notice ordinarily is required to take further steps in enforcing his judgment, such as an execution or levy upon the judgment debtor’s property, in order to prevent the intervening rights of third parties from taking precedence over his claim against the judgment debtor. (See Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5222, C5222:8; but cf. Matter of International Ribbon Mills [Arfan Ribbons], supra.) However, violation of the restraining notice by the party served is punishable by contempt (CPLR 5222, subd [a]; 5251) and subjects the garnishee to personal liability in a separate plenary action or a special proceeding under CPLR article 52 brought by the aggrieved judgment creditor. (See, e.g., Nardone v Long Is. Trust Co., 40 AD2d 697; Mazzuka v Bank of North Amer., 53 Misc 2d 1053; Matter of Sumitomo Shoji N. Y. v Chemical Bank N. Y. Trust Co., 47 Misc 2d 741, affd 25 AD2d 499.) It is this type of liability which Aspen seeks to impose upon Marine in the present proceeding. This, however, Aspen may not do.

The last sentence of CPLR 5222 provides that “[i]f a garnishee served with a restraining notice withholds the payment of money belonging or owed to the judgment debtor in an amount equal to twice the amount due on the judgment, the restraining notice is not effective as to other property or money.” (CPLR 5222, subd [b].) Thus, as did its predecessor under the Civil Practice Act (Civ Prac Act, § 781), CPLR 5222 requires the retention of twice the amount due on the judgment in order to ensure payment of all costs and interest as well as the balance owing to the judgment creditor on the judgment. Once this is done, the garnishee is then free to dispose of the remainder of the judgment debtor’s property in excess of the retained amount without regard to the restraining notice. This provision in CPLR 5222 is a practical recognition by the Legislature of the commercial reality that a large asset of a judgment debtor should not be frozen, even temporarily, for purposes of satisfying a judgment which represents but a small portion of the corpus of that asset. We find this provision of CPLR 5222 to be dispositive of the present appeal.

The balance in the Whiting account when the restraining notice was served amounted to $838.51. In the days that followed, additional deposits increased the balance to $19,-295.32 on October 12, $24, 559.06 on October 13, and finally $27,622.32 on October 16 when Marine exercised its right of setoff. Although disbursements were made during this period, at no time while the restraining notice was in effect did Marine allow the balance in the Whiting account to drop below twice the amount then owing on the judgment to Aspen. In fact, the balance in the acocunt was increased to over five times the amount due on the judgment as a result of these transactions. Thus, since at least twice the amount due on the judgment was withheld by Marine, the restraining notice was “not effective” as to the remainder of the funds in the Whiting account and Marine did not violate the notice served upon it by keeping the account open.

Moreover, even if it were assumed that Marine violated the restraining notice, Aspen would not be entitled to recover. While a violation of a restraining notice can subject the garnishee to liability (see Nardone v Long Is. Trust Co., 40 AD2d 697, supra; Mazzuka v Bank of North Amer., 53 Misc 2d 1053, supra), a judgment creditor, in order to recover, must establish that it sustained damages as a result of the garnishee’s disobedience of the notice. It is necessary, therefore, for the judgment creditor to demonstrate that property of the judgment debtor was available to satisfy the judgment at the time the restraining notice was in effect. (See Nardone v Long Is. Trust Co., 40 AD2d 697, supra.) Here, however, because of Marine’s right of setoff to satisfy a pre-existing obligation of the judgment debtor to the bank, Aspen cannot establish such damages.

Section 151 of the Debtor and Creditor Law provides in pertinent part: “Every debtor [here, Marine] shall have the right upon * * * the issuance of any execution against any of the property of; the issuance of a subpoena or order, in supplementary proceedings, against or with respect to any of the property of; or the issuance of a warrant of attachment against any of the property of; a creditor [here, Whiting], to set off and apply against any indebtedness, whether matured or unmatured, of such creditor to such debtor, any amount owing from such debtor to such creditor, at or at any time after, the happening of any of the above mentioned events, and the aforesaid right to set off may be exercised by such debtor against such creditor * * * notwithstanding the fact that such right of set off shall not have been exercised by such debtor prior to the making, filing or issuance, or service upon such debtor of, or of notice of, any such * * * execution, subpoena or order or warrant.”

In short, this statute confers -upon a garnishee a right to set off any debt owed to it by a judgment debtor. This right of setoff, we have said, is superior to the rights of intervening judgment creditors and may be exercised even after the judgment creditor has undertaken enforcement of his claim against the judgment debtor. (See Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639, 645, supra.) Although the statute does not expressly refer to restraining notices, it seems abundantly clear that, by enacting section 151 of the Debtor and Creditor Law, the Legislature intended to “cover the field” in terms of the garnishee’s right of setoff vis-a-vis the various enforcement devices. (See 1952 Report of the NY Law Rev Comm, p 365.) Hence, the rights conferred under a restraining notice, which, in actuality, is but a “junior remedy” in the arsenal of enforcement mechanisms under CPLR article 52, clearly are subject to the superior right of setoff under section 151 of the Debtor and Creditor Law. (Accord Matter of West Harlem Pork Center v Empire Nat. Bank, 60 AD2d 859.)

Here, the amount of Whiting’s indebtedness to Marine at the time the restraining notice was served, $124,597.64, greatly exceeded the total which would have been on deposit even if Marine had refused to honor the checks presented on the judgment debtor’s account on or after October 11, 1978. Hence, Marine at all times relevant had a superior right to offset the entire amount present in the Whiting account, leaving no funds available to satisfy Aspen’s judgment. This is precisely the course which Marine pursued and section 151 of the Debtor and Creditor Law clearly authorized such action. Thus, no loss resulted to Aspen under the facts of this case.

For the reasons stated, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Onondaga County, reinstated.

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

Order reversed, etc.

       In this case, Marine is a “debtor” of Whiting for purposes of section 151 of the Debtor and Creditor Law, for it is clear that a bank is a debtor of its depositor. (Matter of Industrial Comr. of State of N. Y. v Five Corners Tavern, 47 NY2d 639, 645, n 2; see, also, Brigham v McCabe, 20 NY2d 525, 530-531; Solicitor for Affairs of His Majesty’s Treasury v Bankers Trust Co., 304 NY 282, 291.)


author:
      Per Curiam.
     Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Jerry Cohen, Appellant.
    Argued February 13, 1981;
    decided May 7, 1981

      POINTS OF COUNSEL

      J. Jeffrey Weisenfeld for appellant.
    I. The conviction should be reversed and counts 7 through 10 of the indictment should be dismissed as defective for they do not allege the material element of willfulness. (People v Iannone, 45 NY2d 589; People v Farson, 244 NY 413; People v Riforgiato, 19 AD2d 132; People v Armlin, 6 NY2d 231; Hagner v United States, 285 US 427; People v Cooper, 24 NY2d 877; Erie County v Whalen, 57 AD2d 281, 44 NY2d 817; Goldstein v City of Long Beach, 28 AD2d 558; Federal Trade Comm. v Standard Motor Prods., 371 F2d 613.) II. Having completed his sentence, appellant is entitled to have the accusatory instrument dismissed. (People v Kvalheim, 17 NY2d 510; People v Allen, 39 NY2d 916; People v Barnes, 58 AD2d 608; People v Harrison, 51 AD2d 589; People v Cady, 37 AD2d 973; People v Denny, 33 AD2d 805; People v Bentley, 78 Misc 2d 578; People v Witenski, 15 NY2d 392; People v Davis, 55 Misc 2d 656.)

      Robert Abrams, Attorney-General (Edward D. Saslaw and William F. Dowling of counsel), for respondent.
    I. The indictment properly alleged that defendant committed acts constituting every material element of the crimes charged. (People v La Ruffa, 34 NY2d 242, 419 US 959, 37 NY2d 58; People v Melton, 35 NY2d 327; People v O’Neal, 44 AD2d 830; People v Clark, 65 AD2d 884; People v Iannone, 45 NY2d 589; United States v Bishop, 412 US 346; Spies v United States, 317 US 492; Erie County v Whalen, 57
      AD2d 281,44 NY2d 817; People v Mobil Oil Corp., 48 NY2d 192; People v Nogueros, 42 NY2d 956.) II. If the judgment is reversed, a new trial must be ordered. (People v Cender, 18 NY2d 610; People v Allen, 39 NY2d 916; People v Barnes, 58 AD2d 589; People v Fondal, 64 AD2d 638.)
   OPINION OF THE COURT

Per Curiam.

Defendant was indicted for grand larceny and for failure to file New York State and local sales and use tax returns. He pleaded guilty to the following count, typical of those charging failure to file tax returns:

“THE GRAND JURY OF THE COUNTY OF NEW YORK by this Indictment, further accuses the defendants, PLAZA HEALTH CLUBS, INC. and JERRY COHEN a/k/a JUSTIN KORN, of the crime of failure to file a New York State and Local Sales and Use Tax Return in violation of the provisions of Section 1145(b) of the Tax Law of the State of New York, committed as follows:

“On or about September 20, 1976, in the County, City and State of New York, the defendants, PLAZA HEALTH CLUBS, INC. and JERRY COHEN a/k/a JUSTIN KORN, failed to file a New York State and Local Sales and Use Tax Return (Form ST-100) covering the operation of PLAZA HEALTH CLUBS, INC. for the period June 1, 1976 to August 31, 1976 inclusive.” He now seeks our reversal of the order of the Appellate Division affirming his conviction, on the ground that the indictment was fatally defective for failure to allege the element of willfulness.

The present indictment fulfilled the jurisdictional requirements of an indictment by its specific allegations that the defendant failed to file a New York State tax form, and that his failure violated the terms of a specific statute designated by name and section (People v Iannone, 45 NY2d 589, 599). The incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon, if any, for conviction under that statute. The defendant’s argument both before and since his plea that the indictment was jurisdictionally insufficient is therefore without merit.

Moreover, it is unrealistic now for the concurring opinion to splinter the analysis of the many charges in this case, which involved a multicount indictment clearly indicating that the People intended to prove willfulness, and allow a challenge to the one count to which a plea was taken on the theory that that particular count provided insufficient notice. In fact viewing the matter in its entirety there can be no reasonable assertion of a lack of notice. The technical argument defendant now seeks to raise arises only because of the narrowing of focus due to the plea to one count.

It was, of course, open to defendant to move to dismiss the indictment for failure to meet the requirements of CPL 200.50 or to seek a bill of particulars of the charge on which he was indicted. Any argument, however, that the indictment in this case was deficient as failing to meet the requirements of CPL 200.50 or as failing to give more detailed notice of the offense charged than that furnished by the jurisdictionally sufficient indictment was waived by defendant’s plea of guilty (cf. People v Kazmarick, 52 NY2d 322; People v Clairborne, 29 NY2d 950, 951).

Accordingly, the order of the Appellate Division should be affirmed.

Gabrielli, J.

(concurring). I concur in the majority’s decision to sustain defendant’s conviction. However, I am unable to adopt the analysis advanced by the majority for, in my view, it has overruled the well and firmly established principle that the failure of an indictment to charge every required element of a crime is a non waivable jurisdictional defect. Nonetheless, I vote to affirm the order of the Appellate Division for the simple reason that the Legislature has determined that a failure to file a required sales and use tax return is punishable as a strict liability offense.

Defendant was charged by a 10-count indictment with, among other offenses, the crime of failure to file a New York State and local sales and use tax return in violation of subdivision (b) of section 1145 of the Tax Law. In charging the defendant with this crime, the indictment simply tracked the language of the applicable statute. Defendant moved on several grounds to have the indictment dismissed, arguing inter alia that the counts of the indictment dealing with the failure to file sales tax returns must be dismissed because an allegation of willfulness was lacking. In so doing, defendant relied upon People v Cooper (24 NY2d 877), a case which interpreted a New York City statute (Administrative Code of City of New York, § N46-17.0, subd [b]) similar to subdivision (b) of section 1145 of the Tax Law. In Cooper, the court held that the applicable provision of the New York City Administrative Code required proof of a willful failure to file tax returns in order to sustain a conviction. In the case before us, Trial Term rejected defendant’s contention and denied the motion to dismiss, however, stating that even if the Cooper holding were applicable to the State statute, it would not be controlling in this instance since it dealt only with the proof required at trial and not with pleading requirements. Thereafter, the defendant pleaded guilty to failing to file a New York State and local sales tax return, and the judgment of conviction was unanimously affirmed by the Appellate Division, without opinion.

In the present appeal, defendant has attempted to renew the argument he made before Trial Term. The majority, however, has completely ignored and sidestepped the issue raised by the defendant — whether willfulness is an element of the crime established by subdivision (b) of section 1145 of the Tax Law — and, in a Per Curiam opinion devoid of analysis, has departed from precedent to overrule principles firmly embedded in our system of justice. To analyze fully the effect of the majority’s holding the underpinnings of the indictment process as it has evolved in New York must be briefly examined.

The indictment process has a long-standing tradition in New York. Historically, the indictment has served multiple functions, some of which have been replaced by the use of other devices which have evolved with the criminal justice system (see People v Iannone, 45 NY2d 589). Nonetheless, the fundamental and the constitutionally mandated purpose of the indictment remains “to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the State” (People v Iannone, supra, at p 595, citing 1 Holdsworth, A History of English Law [3d ed, 1922], p 321). Before a citizen may be held answerable for a crime charged by indictment, a Grand Jury must first evaluate the State’s proof and conclude that there is both reasonable cause to believe that the person accused committed the crime charged and, further, that there is legally sufficient evidence to establish each and every element of that offense (GPL 190.65, subd 1). Indeed, by handing up an indictment (or refusing to do so), the Grand Jury performs its historic function as a bulwark against unwarranted prosecutions.

The indictment itself, which is the product of a Grand Jury’s deliberations, is a most meaningful legal document and is not merely a vestige of some ancient ritual. Its modern function is, in part, to serve as evidence that a panel of citizens has fulfilled the historic and statutorily mandated duties of a Grand Jury. In addition, the document also serves to provide the defendant with sufficient notice to prepare a defense. Indeed, we have recently stated that “the basic essential function of an indictment * * * is * * * to notify the defendant of the crime of which he stands charged” (People v Iannone, supra, at p 598). The majority today, by its holding, has effectively abrogated several of these firm principles.

The Per Curiam opinion discusses defendant’s contentions concerning the failure of the indictment to allege the element of willfulness without determining whether willfulness is actually an element of the crime. The majority first states that an indictment which, without more, charges a violation of a specific statute, sufficiently incorporates both the statutorily defined elements and those elements of the crime produced by “judicial gloss”. Thus, following the reasoning and holding of the Per Curiam in this case, if a statute defining a crime contained no reference to a required culpable mental state, an indictment which merely reiterates this statutory section would be legally sufficient notwithstanding that the courts have interpreted the statute as requiring that there be proof of the element of willfulness. Such a position is devoid of either legal or logical basis. Furthermore, in the present case the majority does not reach the question of whether willfulness is an element of the crime charged because the majority also holds that defendant, by his plea of guilty, waived any objection to the failure of the indictment to set forth this element. Without a hint of legal analysis, the majority has severely undermined several of the critical and important functions which the indictment has heretofore served and the protections which it has afforded.

To guard against unwarranted accusations, the indictment process requires that a Grand Jury first determine if a defendant may be held over for trial. As noted, the Grand Jury must determine whether there is reasonable cause to believe that the person accused committed the crime charged and, further, that there is legally sufficient evidence to establish each and every element of that offense (CPL 190.65, subd 1). The Grand Jury, of course, may not restrict itself to a review of only those elements of the crime defined in the statute, but must also consider judicially mandated elements. If the indictment does not specifically set forth each of these elements, however, it will be impossible to discern from the face of the indictment whether the Grand Jury did in fact conclude that there was legally sufficient evidence to establish the essential elements not specifically mentioned or referred to in the statute. In this case, as in most cases, the statement contained in the indictment is the only means by which we may ascertain the findings of the Grand Jury. This is precisely why it is essential that the indictment state each and every element of the crime, including those which are not expressly provided for in the applicable penal statute.

An indictment which fails to state each of the elements of the crime charged also deprives the defendant of the notice to which he is entitled in order to prepare his defense. If an indictment merely recites that the defendant has violated the provisions of a specifically designated statute, the defendant will be forced to divine from speculation, perhaps, exactly what elements the People will have to prove against him at trial. This may be no easy task, for a majority of this court today is unwilling, and indeed refuses to state whether willfulness is an element of the crime of failing to file a sales and use tax return (Tax Law, § 1145, subd [b]).

The most disturbing aspect of the majority’s analysis in this case, however, concerns its holding that the defendant has waived, by his plea of guilty, any objections to the failure of the indictment to allege the element of willfulness. In our recent decision in People v Iannone (45 NY2d 589, supra), in which we stripped the need for factual allegations in indictments to a bare minimum, we held that an indictment will be found jurisdictionally defective if “the acts it accuses defendant of performing simply do not constitute a crime (see People v Case, 42 NY2d 98), or if it fails to allege that a defendant committed acts constituting every material element of the crime (see People v McGuire, 5 NY2d 523)” (45 NY2d, at p 600 [emphasis supplied]). Jurisdictional defects in an indictment have never been held waivable by a plea of guilty (People v Iannone, supra; People v Scott, 3 NY2d 148, and cases cited therein). Viewed in this light, the Per Curiam opinion can only be interpreted as holding that the jurisdictional defects in an indictment may be waived by a plea of guilty. This is pure error. Obviously, it cannot be said, as the majority suggests, that defendant merely waived his power to seek a judicial determination as to whether willfulness is an element of the crime, because defendant’s right to a complete indictment cannot be made to depend upon the failure of the statute or the judicial system to clearly define the elements of the crime prior to his indictment. If the failure of an indictment to allege a necessary element of the crime may be waived, then, essentially, there is nothing left to an indictment that could be considered as jurisdictionally necessary. I cannot concur in an opinion which serves to abrogate principles so firmly embedded in the fabric of our State Constitution and our prior case law.

Although I am unable to agree with the majority's erroneous reasoning and analysis, I do concur in result, because I am persuaded that willfulness is not an element of the offense proscribed by subdivision (b) of section 1145 of the Tax Law and that the defendant pleaded guilty to an indictment which did contain the essential elements of the crime charged.

Subdivision (b) of section 1145 of the Tax Law, when literally read, imposes no specific culpable mental state for the crime of failure to file a return. Instead, the statute simply provides that “[a]ny person failing to file a return required by this article * * * shall, in addition to any other penalties herein or elsewhere prescribed, be guilty of a misdemeanor”. Although the imposition of strict liability is generally disfavored, a criminal statute which does not expressly provide for a culpable mental state may be interpreted as establishing a strict liability crime where, as here, such a result was clearly intended by the Legislature (see Penal Law, § 15.15, subd 2). In this situation, it is significant that the Legislature has intentionally and specifically made “intent” an element of the crime of evading the payment of personal income tax (Tax Law, § 695, subd [a]), while imposing no such requirement upon the crime of failing to file a sales and use tax return. Additionally, subdivision (b) of section 1145 also proscribes conduct other than failing to file such returns and carefully provides that willfulness shall be an element of certain other crimes therein provided for, yet the statute specifies no similar requirement of a culpable mental state for the crime of failing to file a sales and use tax return. Viewed in this light, the crime to which defendant entered a guilty plea cannot be read as containing the element of willfulness. No such element is required, for the crime charged is a strict liability offense. To the extent that the holding in People v Cooper (24 NY2d 877, supra) is to the contrary, it must be deemed as having no controlling force.

One further comment is in order. The weakness of the majority’s analysis is further evidenced by their use of People v Kazmarick (52 NY2d 322) and People v Clairborne (29 NY2d 950) in order to sustain their position. Reliance on these cases is completely unavailing. Kazmarick dealt only with a guilty plea operating to waive objections to the sufficiency of the evidence before the Grand Jury and did not speak to the failure of an indictment to allege all of the essential elements of the crime charged. Similarly, Clairborne is equally unsupportive of their position, since the indictment in that case, although technically unauthorized, was not defective in the sense that it failed to give notice of all the elements of the crime charged (cf. People v Iannone, 45 NY2d 589, supra).

Accordingly, I would reach the merits and affirm the order of the Appellate Division.

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

Order affirmed.

      . Indeed, the" defendant even sought to plead to unwillful failure to file a return and the court refused to accept it.

      . In the view we take of this appeal it is unnecessary in this case to consider whether willfulness is an element of the violation of subdivision (b) of section 1145 of the Tax Law, and thus whether our decision in People v Cooper (24 NY2d 877) should be reexamined. Resolution of that question would better await a case in which we might have the benefit of the views of the State Tax Commission, the agency charged with responsibility for administration of the statute.

      . It goes without saying, of course, that if the statute itself contains the required elements (including a mental state where required), the recitation of the statute will suffice.

      . My disagreement with the majority’s error is made the more evident by the facts in this case. Defendant entered a guilty plea to the crime stated in the indictment charging a failure to file sales and use tax returns. If, as one might assume subdivision (b) of section 1145 will be interpreted as punishing a “willful” failure to file returns, defendant, in pleading guilty to the change as described in this indictment, is accepting punishment for conduct which does pot constitute a crime. Of course, such a result is unacceptable under our system of criminal jurisprudence (People v Briggins, 50 NY2d 302, 309; People v Case, 42 NY2d 98, supra).