author: Jasen, J. Gabrielli, J.

text:
    W. T. Grant Company, Appellant-Respondent, v Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, Respondent-Appellant. (Proceeding No. 1.) Ed Guth Realty, Inc., Appellant-Respondent, v Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, Respondent-Appellant. Franchise Realty Interstate Corporation, Appellant-Respondent, v Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, Respondent-Appellant. (Proceeding No. 2.) W. T. Grant Company, Respondent, v Robert Z. Srogi, as Commissioner of Assessment of the City of Syracuse, Appellant. (Proceeding No. 3.)
    Argued February 16, 1981;
    decided April 9, 1981

      POINTS OF COUNSEL
    Injunction

      David M. Garber, Corporation Counsel (Harold L. Fisher, Andrew S. Fisher and Gerald Gorinsky of counsel), for respondent-appellant.
    I. Special Term had no legal authority to issue, and the court below to affirm the preliminary injunction issued herein. (People ex rel. Manhattan Ry. Co. v Coleman, 48 Hun 602; People ex rel. New York El. Ry. Co. v Coleman, 48 Hun 620; People ex rel. Lehigh Val. Ry. Co. v Clover, 174 Misc 44; Metropolitan Transp. Auth. v City of New York, 70 AD2d 551; Matter of

      Smallwood v Comptroller of City of N. Y., 35 Misc 167; People ex rel. American Sugar Refining Co. v Sexton, 274 NY 304; Matter of Trustees of Sailors’ Snug Harbor in City of N. Y. v Tax Comr. of City of N. Y., 26 NY2d 444; Matter of Stevens Med. Arts Bldg. v City of Mount Vernon, 72 AD2d 177.) II. Assuming, arguendo, that the Supreme Court has the authority to enjoin the collection of taxes, in the context of a tax certiorari proceeding, it abused its discretion in issuing the preliminary injunction herein and the court below was in error in affirming Special Term. (Canino v Engelstein, 43 NY2d 922.) III. The injunction issued herein is against public policy. (Crane v Commissioner, 331 US 1.)

      Franklin J. Schwarzer for appellants-respondents.
    I. Ad valorem tax laws are predicated on the assumption that property values will be fairly determined. The city has ignored the statutory mandate to assess real property at its fair market value and has repeatedly imposed unlawful assessments on petitioner’s property. II. The continual restoration of the assessment to the 1964 amount of $1,135,700 constitutes a taking not only on the theory of inverse condemnation, but also on the theory of conversion. (City of Buffalo v Clement Co., 28 NY2d 241; Foster v City of Detroit, Mich., 254 F Supp 655, 405 F2d 138; Foster v Herley, 330 F2d 87; Forster v Scott, 136 NY 577; Matter of Keystone Assoc. v Moerdler, 19 NY2d 78; Matter of City of New York [Public Place — Duane St.], 54 Misc 2d 69; City of Buffalo v Strozzi, 54 Misc 2d 1031; Leeds v State of New York, 20 NY2d 701.) III. The prohibition of transfer of title should continue until the final determination of the proper assessment on all cases presently on appeal or pending for trial.
    Assessment

      David M. Garber, Corporation Counsel (Donald A. Marshall of counsel), for respondent-appellant.
    I. The court below erred by adopting the sale of the Guth property as determinative of value. (Robinson v New York El. R. R. Co., 175 NY 219; Matter of Thompson, 127 NY 463; Ettlinger

      v Weil, 184 NY 179; Heiman v Bishop, 272 NY 83; Matter of Board of Water Supply of City of N. Y., 277 NY 452; People ex rel. Parklin Operating Corp. v Miller, 287 NY 126; Village of Lawrence v Greenwood, 300 NY 231; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1; Plaza Hotel Assoc. v Wellington Assoc., 37 NY2d 273.) II. The court below erred by reducing the value of the W. T. Grant property. (Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538.) III. The court below erred by reducing the assessments below the amounts demanded in petitioner’s petition. (Matter of Wright v Commissioner of Assessment & Taxation of City of Albany, 242 App Div 888, 267 NY 615; Matter of Seneca Grape Juice Corp. v Board of Assessors of Town of Lloyd, Ulster County, 34 AD2d 692; Matter of J. C. P. Leasing Co. v Browne, 45 AD2d 129; Matter of Lawrence Investing Co. v Board of Review of Dept. of Assessment of Town of Eastchester, 86 Misc 2d 642.)

      Franklin J. Schwarzer for appellants-respondents.
    I. All property in the City of Syracuse must be assessed at the same percent of full value so as to equitably assume its fair share of the tax burden. (Sioux City Bridge v Dakota County, 260 US 441; People ex rel. Warren v Carter, 109 NY 576; People ex rel. Allen v Badgley, 138 NY 314; Matter of Hellerstein v Assessor of Town of Islip, 44 AD2d 689, 37 NY2d 1.) II. The Guth sale was not a sale under compulsion so as to be a forced or involuntary sale and is indicative of the full fair market value of the property. III. Petitioner’s appraisal figures should be accepted as the full fair market value for the W. T. Grant Company premises. IV. The court below did not err by reducing the. value of the Guth and Grant property. (People ex rel. Interstate Land Holding Co. v Purdy, 236 NY 609; People ex rel. Empire Mtge. Co. v Cantor, 198 App Div 317; Matter of Corwin, 135 NY 245; People ex rel. Commercial Mut. Ins. Co. v Tax Comrs. of City of N. Y., 144 NY 483; Matter of Reservoir Estates v Paulus, 47 Misc 2d 754; Matter of Franklin Shops v Village Assessor of Inc. Vil. of Hempstead, 15 AD2d 921; Guth Realty v Gingold, 41 AD2d 479, 34 NY2d 440.)

      Costs

      David M. Garber, Corporation Counsel (Harold L. Fisher, Andrew S. Fisher and Gerald Gorinsky of counsel), for respondent-appellant.
    I. Awards of additional allowances pursuant to CPLR 8303 (subd [a], par 2), are not available in assessment proceedings under the Real Property Tax Law. (People ex rel. American Sugar Refining Co. v Sexton, 274 NY 304; Matter of Trustees of Sailors’ Snug Harbor in City of N. Y. v Tax Comr. of City of N. Y., 26 NY2d 444; Matter of Stevens Med. Arts Bldg. v City of Mount Vernon, 72 AD2d 177; People ex rel. Syracuse Trust Co. v Remmer, 249 App Div 905, 275 NY 589; People ex rel. Niagara Falls Hydraulic Power & Mfg. Co. v Russell, 57 Hun 53.) II. No costs should be awarded to petitioners, in regard to the grant property for the 1976 tax year, either under CPLR 8303 (subd [a], par 2) or section 722 of the Real Property Tax Law. III. This court should consider, de novo and based upon its determination of the valuation issue, the correctness of the awards of extra allowances made by the courts below.

      Franklin J. Schwarzer for appellants-respondents.
    I. Petitioners are entitled to costs under subdivisions 1 and 2 of section 722 of the Real Property Tax Law. II. Petitioners were also entitled to additional costs under CPLR 8303 (subd [a], par 2). (People ex rel. Syracuse Trust Co. v Remmer, 249 App Div 905, 275 NY 589; University of Rochester v Wagner, 63 AD2d 341.)
   OPINION OF THE COURT

Jasen, J.

These appeals raise a number of issues concerning tax assessment review proceedings under article 7 of the Real Property Tax Law. The primary question presented is whether a court may grant a preliminary injunction restraining a municipality from transferring title to real property acquired by the municipality by virtue of nonpayment of taxes during the pendency and final determination of proceedings to reduce the tax assessment on that property.

These consolidated tax review proceedings involve two parcels of commercial property located in the downtown Syracuse business district. This area has been and continues to be a hotbed of tax litigation. Cases involving the properties involved herein, as well as other parcels of real estate in this district, have been in our courts on a unmber of occasions already (see Matter of Rice v Srogi, 70 AD2d 764; McCrory Corp. v Gingold, 52 AD2d 23; Guth Realty v Gingold 41 AD2d 479, affd 34 NY2d 440; Matter of Guth Realty v Gingold, 16 AD2d 372), and there presently are pending over 150 applications seeking review of other assessments imposed by the City of Syracuse.

The instant proceedings were brought to review assessments for the years 1971-1976 on two separately owned parcels. The first of the two properties is located at 323 South Salina Street in Syracuse and will be referred to as the “Guth” property. The second property is located at 425-427 South Salina Street and will be referred to as the “Grant” property.

The Guth property is located in the 300 block of South Salina Street. It is improved by a five-story building which is approximately 80 years old. The prior owner, Ed Guth, purchased the property in 1955 and used the building to house a hobby shop and toy store until 1974 when he sold the property to Franchise Realty Interstate Corp., the real estate division of the McDonald’s Corporation.

Mr. Guth previously had offered this property for sale from as early as 1962, but apparently had received no purchase offer worth considering until that of Franchise Realty. The original offer by Franchise Realty was for $130,000, but the price was negotiated upward to $150,000 when the property was finally sold. At the time of this sale, Mr. Guth had no connection with Franchise Realty. Moreover, Mr. Guth was in sound financial condition at the time, but had decided to give up his business because of declining sales and the high cost of operation.

After Franchise Realty purchased the Guth property, an arrangement with a prospective McDonald’s licensee who was to occupy the building fell through. As a result, the property remained vacant and Franchise Realty offered it for sale. Franchise Realty, however, has been unsuccessful in obtaining a purchaser for the Guth property.

Despite two prior proceedings which resulted in substantial reductions in tax assessment (Guth Realty v Gingold, 41 AD2d 479, affd 34 NY2d 440, supra; Matter of Guth Realty v Gingold, 16 AD2d 372, supra), the city continually assessed the Guth property at $212,200 each year from 1964-1974. In 1975 and 1976, the city assessed the property at $180,200.

The Grant property is located in the easterly half of the 400 block of South Salina Street. The property originally was owned by the University of Rochester and was leased to the W. T. Grant Company in 1944 for a 30-year term which was later extended to 1982 with an option to renew until 2043. Aside from the annual base rent of $77,322.32, Grant was to pay all taxes, utilities, insurance and building maintenance. Grant constructed a five-story building on the property which it sold to and then leased back from the University of Rochester. Each year since 1964, the city has assessed the property at $1,135,700.

Because of declining sales volume, Grant decided in 1974 to close its store. Shortly thereafter, Grant was persuaded to remain open by an agreement with the University of Rochester and the City of Syracuse under which the university deferred the annual rent and the city settled the 1964-1970 tax litigation then on appeal. (See McCrory Corp. v Gingold, 52 AD2d 23, 25, supra.) In 1976, however, the tenancy ended when the Grant chain went bankrupt and vacated the premises.

The University of Rochester sold the Grant property in late 1976 to South Salina Street, Inc., for the sum of $25,-000. South Salina Street, Inc., agreed to assume liability for the unpaid 1976 taxes, penalties and interest on the property, thereby making the total consideration for the transfer $175,774.32. South Salina Street, Inc., however, failed to pay the 1976 taxes and has since failed to pay taxes for the years 1977-1979. Pursuant to the city’s tax act (L 1906, ch 75, §§ 21,22, as amd by Local Law, 1944, No. 1 of City of Syracuse), tax sales were conducted with respect to the 1976-1978 tax delinquencies. South Salina Street, Inc., did not redeem the premises for the 1976 delinquency (see Real Property Tax Law, § 1010) and on April 9, 1979, the city acquired title to the Grant property pursuant to a tax deed.

In the meantime, tax proceedings were instituted to review assessments on the Grant property for the years 1977-1979. These proceedings are still pending and are not presently before us on these appeals. However, in the context of these proceedings, South Salina Street, Inc., in May of 1979, sought and obtained a preliminary injunction from Special Term restraining the city from transferring title to the Grant property until final determination of the tax assessment review proceedings for the years 1976-1979. It is the issuance of this injunction which is presently before our court on one of these appeals.

As mentioned earlier, these proceedings were commenced to review assessments on the Guth and Grant properties for the years 1971-1976. These proceedings were tried jointly with three others which also involved properties in the downtown Syracuse business district. The parties stipulated to the applicable equalization rates and, therefore, trial was held solely to determine the full values of the properties in question.

At trial, testimony was taken from appraisers for the various petitioners and from the city’s appraiser. In regard to the Guth property, petitioner’s appraiser valued the property for the years 1971-1976 at prices ranging between $180,000 to $140,000. The city’s appraiser testified that the full value of the property was a low of $460,100 in 1970 and a high of $487,800 in 1976.

The trial court, acknowledging the general decline of property values in the downtown Syracuse area, found the value to be between those set forth by the parties’ appraisers. Full value for the years 1971-1972 was found to be $300,000, for 1973-1974 to be $275,000, and for 1975-1976 to be $250,000 and the assessments were ordered reduced accordingly. The trial court did not consider the 1974 price of $150,000 at which the Guth property was sold to Franchise Realty to be controlling because, although it was an arm’s length transaction, the court was of the view that the sale was “occasioned by the willingness of the owner to sell at a sacrifice.” This conclusion was based upon Mr. Guth’s desire “to discontinue business at that location due to the fact that he considered the expense of operation did not justify continuing business there.”

There was also much disagreement at trial as to the value of the Grant property. The petitioner’s appraiser testified that the property had a full value of $1,200,000 in 1971 which declined annually to $625,000 in 1976. On the other hand, the city’s appraiser stated that the value of the property ranged between $3,028,200 to $3,150,700 during the years in question. This discrepancy in valuation apparently was caused by the different appraisal methods utilized. The city’s appraiser adopted a method whereby estimated rental income, which was ascertained from comparable leases in the area, was capitalized at 9% and then added to the land values to determine the full value of the property. The petitioner’s appraiser postulated that reasonable rental income could be determined by multiplying gross sales by a factor of 3%, representing the rent which a national chain store would agree to pay on a percentage lease, and capitalizing the result at 9.25% to 12.2%, the expected rate of return on such an investment during the years in question.

The trial court again found that full value was between those alleged by the parties. Full value for the years 1971-1972 was found to be $1,830,000, for 1973-1974 to be $1,670,000, and for 1975-1976 to be $1,510,000, and the assessments were ordered reduced accordingly. Although indicating approval of the petitioner’s gross sales valuation method, the trial court did not expressly accept these figures in arriving at its valuations, stating generally that the petitioner’s method failed to take into consideration long-term market conditions as a determining factor of property value.

On cross appeals, the Appellate Division unanimously modified by further reducing the assessments below that set by the trial court. As to the Guth property, the Appellate Division held that the trial court erred in not giving the 1974 sales price paid by Franchise Realty controlling weight for purposes of determining full value. The Appellate Division viewed the 1974 sale neither as being made under any compulsion nor occasioned by any abnormal impetus for selling. As such, the Appellate Division stated that the $150,000 sales price was entitled to full weight in determining value for purposes of the tax assessment on the Guth property.

The Appellate Division also further reduced the Grant assessment. Noting that the trial court did not set forth the computations it used in determining value, the Appellate Division adopted the petitioner’s valuation method which used a capitalized percentage of gross sales “because that is the method normally used by national tenants and also because of the difficulty that the city appraiser had in finding credible, comparables to support his square-foot rental formula.” The Appellate Division, however, declined to accept the petitioner’s figures for 1974-1976 because of Grant’s failing financial condition and, therefore, projected the 1973 valuation over these years.

The Appellate Division also affirmed Special Term’s grant of the preliminary injunction restraining the city from disposing of title to the Grant property pending final determination of the 1976-1979 assessment review proceedings. The court held that such a remedy should only be available in instances where a taxpayer can demonstrate “a long and aggravated pattern of conduct by the city from which the taxpayer cannot reasonably protect itself or its property without injunctive relief.” The Appellate Division was of the view that the continuous overvaluation of the Grant property in the face of court rulings that the assessments were illegal, coupled with the excessive delays caused by the city in the course of the assessment review proceedings, was such conduct as justified the grant of a preliminary injunction to prevent the loss of title to the Grant property pending final determination of the taxes owed.

On cross appeals to this court, both parties assert that the awards of costs and allowances to petitioners, as modified by the Appellate Division, are in error. The commissioner also contends that the Appellate Division erred in further reducing the assessments on the Guth and Grant properties. Finally, the commissioner maintains that Special Term was without legal authority to issue the preliminary injunction against the City of Syracuse in the context of a tax assessment review proceeding. Alternatively, the commissioner argues that if the court had the power to issue the injunction, Special Term abused its discretion by issuing the injunction under the facts of this case.

We first dispose of the valuation issue. In assessment review proceedings, the value at which real property may be taxed has been equated with market value. (Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236, 239; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, mod 39 NY2d 920; People ex rel. Parklin Operating. Corp. v Miller, 287 NY 126, 129; Matter of Board of Water Supply of City of N. Y., 277 NY 452, 456-457; Matter of Lane Bryant, Inc. v Tax Comm. of City of N. Y., 21 AD2d 669, affd 19 NY2d 715.) The “market value of real property is the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell.” (Heiman v Bishop, 272 NY 83, 86; see, also, Sparkill Realty Corp. v State of New York, 254 App Div 78, 82, affd 279 NY 656.)

The determination of market value essentially is a question of fact. As such, the Appellate Division is empowered to make new findings of value where the trial court “ ‘has failed to give to conflicting evidence the relative weight which it should have’ ”. (People ex rel. MacCracken v Miller, 291 NY 55, 61, citing Matter of City of New York [Newton Creek], 284 NY 493, 497; see Real Property Tax Law, § 724.) Furthermore, where the Appellate Division reverses the findings of value made by the trial court and makes new findings of fact, the Court of Appeals is empowered to choose between the findings of the trial court and the new findings of the Appellate Division by ascertaining which valuation is in accord with the weight of the evidence. (People ex rel. MacCracken v Miller, supra; People ex rel. Hilton v Fahrenkopf, 279 NY 49, 53; 24 Carmody-Wait 2d, NY Prac, §§ 146:126,146:127, pp 352-354.) We affirm the Appellate Division’s reduced valuations of both the Guth and Grant properties.

The reason for the Appellate Division further reducing the valuation of the Guth property was the 1974 sale to Franchise Realty. The general rule as to such sales is “that the purchase price set in the course of an arm’s length transaction of recent vintage, if not explained away as abnormal in any fashion, is evidence of the ‘highest rank’ to determine the true value of the property at that time”. (Plaza Hotel Assoc. v Wellington Assoc., 37 NY2d 273, 277; Matter of Woolworth Co. v Tax Comm. of City of N. Y., 20 NY2d 561, 565; cf. Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236, supra.) The Appellate Division correctly concluded that the 1974 sale to Franchise Realty fit within this general rule.

Mr. Guth had offered the property for sale without success for 12 years. When finally sold, negotiations took place which resulted in a $20,000 increase in the purchase price. At the time of the sale, Mr. Guth was financially secure and his business was doing moderately well. Moreover, as mentioned earlier, Mr. Guth had no interest in or connection with the purchaser, Franchise Realty. After the sale, Franchise Realty unsuccessfully offered the property for sale at a price identical to that at which it was purchased. Under these circumstances, the sales price established in this arm’s length transaction was the best evidence of the value of the Guth property during the years in question and, therefore, the Appellate Division’s further reduction based on this price was justified.

We also agree with the Appellate Division’s reduced valuation of the Grant property. As mentioned earlier, the use of different methods of appraisal for this property reaching, as they did, such broadly disparate results, apparently prompted the trial court to accept neither approach. However, the trial court failed to state how it arrived at its computations of value.

The Appellate Division, on the other hand, chose to accept petitioner’s appraisal method because it produced figures which more closely reflected the value of the property to a national tenant. The Appellate Division was also cognizant of Grant’s deteriorating financial condition during the years in question and appropriately rejected petitioner’s figures based upon gross sales for the years immediately prior to Grant’s bankruptcy. Finally, as noted by the court below, the city’s appraiser was hard pressed to justify the comparable leases he used in computing the estimated net income of the Grant property. Under these circumstances, we are of the view that the Appellate Division’s determination of the market value of the Grant property was more realistic than that of the trial court and more in line with the weight of the evidence.

The commissioner asserts, however, that even if the Appellate Division was correct in further reducing the assessments on the Guth and Grant properties, the court erred by granting the taxpayers relief in excess of what was requested in their various petitions. In support of his position, the commissioner relies primarily on the case of People ex rel. Interstate Land Holding Co. v Purdy (206 App Div 606, affd 236 NY 609). In Purdy, a closely divided court affirmed a decision in which the Appellate Division held that relief in a tax review proceeding is limited to the amount requested in the petition. (Accord People ex rel. Universal Business Corp. v Lewis, 242 App Div 888, affd 267 NY 617; but see People ex rel. Empire Mtge. Co. v Cantor, 198 App Div 317; People ex rel. Congress Hall v Ouderkirk, 120 App Div 650.) We believe that the time has come to overrule the Purdy decision.

In New York, both by statute (Real Property Tax Law, § 306) and under our Constitution (NY Const, art XVI, § 2), real property may not be assessed in excess of its full value. Indeed, it is the very purpose of a tax review proceeding “to arrive at a fair and realistic value of the property involved.” (Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236, 242, swpra; see, also, Matter of Merrick v Board of Assessors of Nassau County, 45 NY2d 538.) Moreover, because the Real Property Tax Law relating to assessment review proceedings is remedial in character, it should be construed in such a way that the taxpayer’s right to have his assessment reviewed and the appropriate relief granted should not be defeated by a pleading technicality. (Matter of Great Eastern Mall v Condon, 36 NY2d 544; People ex rel. New York City Omnibus Corp. v Miller, 282 NY 5, 9.)

It has long been the rule that the primary purpose of the tax petition is to give notice to the taxing authority so that it may take such steps as may be advisable to defend the claim. (Stuyvesant v Weil, 167 NY 421, 425; Foley v D’Agostino, 21 AD2d 60, 62-63.) That being the case, where adequate notice has been given, we see no good reason to adhere blindly to a rule which precludes a court from granting the relief justified by the proof. Aside from being prevented from collecting a tax which has been found to be excessive, the commissioner has not alleged, let alone proven, any prejudice suffered by the city as a result of the assessments being reduced below the amounts requested in the petitions. It is consistent with the general purpose of these proceedings and with the legislative mandate that property not be assessed in excess of full value that relief not be limited to the reduction claimed in the petition. Thus, we hold that where the evidence establishes a value lower than that alleged in the petition, a court can reform the petition to conform with the proof and order the appropriate reduction.

Having affirmed the Appellate Division’s reduced valuation, we now address the propriety of awarding petitioners costs and allowances. The trial court granted costs and allowances to the Guth and Grant petitioners under subdivisions 1 and 2 of section 722 of the Real Property Tax Law. The trial court also awarded petitioners an additional allowance pursuant to CPLR 8303 (subd [a], par 2). On appeal, the Appellate Division affirmed the award of costs and disbursements under subdivision 1 of section 722 of the Real Property Tax Law and modified the additional allowance award by reducing it to the $2,500 maximum authorized by subdivision 2 of section 722 of the Real Property Tax Law. The Appellate Division, however, struck out the additional allowance awarded under CPLR 8303 on the ground that petitioners could only recover costs and allowances as permitted by the Real Property Tax Law. We agree with the Appellate Division’s disposition of costs and allowances.

Contrary to the commissioner’s assertions, there is no basis upon which to upset the awards under section 722 of the Real Property Tax Law. The petitioners were successful in reducing their assessments by more than one half of the reductions they claimed and, therefore, they were entitled to costs and disbursements for the proceedings as of right. (Real Property Tax Law, § 722, subd 1.) Similarly, the record supports the findings that the assessments were “increased without adequate cause” subsequent to court orders of reduction in the case of the Guth property and after stipulation in the case of the Grant property. Therefore, the petitioners qualified for additional allowances under subdivision 2 of section 722 of the Real Property Tax Law.

We also agree with the Appellate Division that petitioners were not entitled to the discretionary allowance authorized by CPLR 8303 (subd [a], par 2). As a general rule, there should be no resort to the provisions of the CPLR in instances where the Real Property Tax Law expressly covers the point in issue. (CPLR 103, subd [b]; Matter of Trustees of Sailors’ Snug Harbor v Tax Comm. of City of N. Y., 26 NY2d 444, 450; People ex rel. American Sugar Refining Co. v Sexton, 274 NY 304; Matter of Stevens Med. Arts Bldg. v City of Mount Vernon, 72 AD2d 177, 182.) In this regard, it is interesting to note that the predecessor statute to CPLR 8303 expressly provided that it was inapplicable to tax assessment review proceedings. (L 1934, ch 361; Civ Prac Act, § 1513.) However, when this section was carried over into its present form in the CPLR, reference to the Real Property Tax Law inexplicably was deleted.

Notwithstanding the apparent ambiguity created by this omission in CPLR 8303, we agree that section 722 of the Real Property Tax Law provides the exclusive additional allowance in assessment review proceedings. Indeed, subdivision 2 of section 722 of the Real Property Tax Law states that “the court shall award to the petitioner an additional allowance, not exceeding the amounts hereinafter specified”. (Emphasis supplied.) This language, in our view, indicates that the Legislature intended that the allowance provision in section 722 of the Real Property Tax Law would supersede the additional allowance authorized by CPLR 8303 (subd [a], par 2). Thus, we affirm the holding below that an additional allowance pursuant to CPLR 8303 (subd [a], par 2) may not be granted in an assessment review proceeding. (Accord Matter of Jacobs v Board of Assessors of Town of Elma, 73 AD2d 810; Matter of Rice v Srogi, 70 AD2d 764, supra; see 24 Carmody-Wait 2d, NY Prac, §§ 146:17, 146:20.)

We conclude by addressing the propriety of granting the preliminary injunction against the City of Syracuse. As mentioned earlier, this injunction was obtained by South Salina Street, Inc., and restrained the city from transferring title to the Grant property until the 1976-1979 assessment review proceedings were completed. We hold that while a court has the power to enjoin a municipality from transferring title to property acquired for nonpayment of taxes during the pendency of an assessment review proceeding, it was error under the circumstances present in this case for Special Term to do so.

It is well established that one challenging a tax assessment must continue to pay his taxes and that the commencement of an assessment review proceeding does not stay the collection of taxes or enforcement procedures instituted by the taxing authority. (Real Property Tax Law, § 704, subd 3; see People ex rel. Manhattan Ry. Co. v Coleman, 48 Hun 602; People ex rel. New York El. Ry. Co. v Coleman, 48 Hun 620.) The reason for this rule is readily apparent. A government must function and to that end it must have funds. Restraints on the exercise of the taxing power would impede the progress of government and deprive it of the moneys it needs to provide essential services to the public. Thus, a municipality ordinarily should not be denied or delayed in the enforcement of its right to collect the revenues upon which its very existence and the general welfare depends. To state these basic principles, however, does not end the analysis.

There is no statute in New York which either expressly authorizes or prohibits preliminary injunctions in the context of tax review proceedings. The CPLR provisions relating to injunctions, therefore, should, at least by implication, be available in these situations. (See CPLR 103, subd [b] ; art 63.) However, aside from the Appellate Division’s decision presently under review, research has revealed no other authority in this State which affords guidance in answering the question presented. (Cf. Weber v City of New York, 18 Misc 2d 543.)

Other jurisdictions which have addressed analogous situations have, for the most part, concluded that a court does have the equitable power to enjoin the collection of a tax under certain circumstances. (See, e.g., Kent v Murphey, 207 Ga 707; Clarendon Assoc. v Korzen, 56 Ill 2d 101; Harshberger v Board of County Comrs., 201 Kan 592; Fitzpatrick v Patrick, 410 SW2d 143 [Ky]; Bettigole v Assessors of Springfield, 343 Mass 223; Twenty-Two Charlotte v City of Detroit, 294 Mich 275.) These cases have usually involved situations in which there has been a clear showing of intentional overassessment of property tantamount to fraud on the part of the tax authority and the taxpayer was without relief from the imminent deprivation of his property while he attempted to challenge the unauthorized tax. Absent such intentional misconduct, however, these courts have been quick to note that an injunction is not available to avoid an excessive assessment which is the product of inadvertence or mistake and the taxpayer in such instances is left solely to his administrative remedies. (See, e.g., Hodge v Glaze, 22 Ill 2d 294; Harshberger v Board of County Comrs., supra; Bettigole v Assessors of Springfield, supra; see, generally, 84 CJS Taxation, §§ 716-722.)

We would agree that a court has the power to issue a preliminary injunction restraining the enforcement of a tax, but that power should be exercised in only the most unusual circumstances. Where there has been a deliberate misuse of the taxing power, a court should be able to intervene to prevent the threatened loss of the taxpayer’s property occasioned by the imposition of an intentionally excessive tax. Indeed, to adopt a contrary view would relegate the taxpayer to a truly pyrrhic victory. After successfully challenging the assessment levied against him, the taxpayer would be rewarded with a refund at 3% interest (General Municipal Law, § 3-a), but in the meantime the taxpayer’s property would have been sold because of an inability to pay a tax which improperly was imposed in the first instance. Such a temporary restraint does little harm to the taxing authority and at the same time preserves the status quo pending a determination of the amount owed.

Of course, beyond showing an intentional misuse of the taxing power, the taxpayer would have to meet the usual requirements to be entitled to temporary injunctive relief, to wit: (1) the likelihood of success on the merits; (2) irreparable injury absent granting the preliminary injunction; and (3) a balancing of the equities. (See, e.g., Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 70 AD2d 1021; Tucker v Toia, 54 AD2d 322; Albini v Solork Assoc., 37 AD2d 835.) Moreover, the court could require the taxpayer to post an undertaking (CPLR 6312, subd [b]) in order to protect the municipality from loss should the assessment proceedings prove that the preliminary injunction was granted improperly.

The facts in the present case are quite compelling. As noted by the Appellate Division, taxpayers have been paying excessive taxes on the Grant property for over 12 years despite court rulings that the assessments were unlawful by reason of overvaluation. Substantial refunds were ordered on two occasions, but the city to date has repaid only a small portion of the taxes it has unlawfully collected. Such an aggravated pattern of misuse of the taxing power might have been sufficient to justify restraining the city from transferring title to the Grant property pending the final determination of the assessment proceedings. Nevertheless, the simple fact of the matter is that the party who obtained the injunction, South Salina Street, Inc., was not the one subjected to this unlawful conduct.

It is well settled that a “plaintiff should be denied an injunction where it lacks equitable standing to obtain affirmative equitable relief”. (Fischel & Co. v Macy & Co., 20 NY2d 180, 187.) However, in this case, South Salina Street, Inc., acquired the Grant property in late 1976 with full awareness of its tax history. Indeed, South Salina Street, Inc., purchased the property at the low price of $25,000 with the understanding that it would assume all tax liability then owing. These taxes were never paid, nor did South Salina Street, Inc., pay taxes on the property for the next three years. Under these circumstances, while Grant may have been entitled to an injunction against the city, South Salina Street, Inc., lacks equitable standing to assert the aggravated pattern of tax abuse to which its predecessor in interest was subject as the basis for injunctive relief. Therefore, we conclude that it was error to issue the injunction in this case.

Accordingly, the orders of the Appellate Division in Grant Co. v Srogi and Guth Realty v Srogi should be affirmed, without costs. The separate order of the Appellate Division in a proceeding also entitled Grant Co. v Srogi affirming the grant of a preliminary injunction should be reversed, with costs, and the motion for preliminary injunction denied. We construe the question certified by the Appellate Division as asking whether a preliminary injunction was properly granted in this case and, as so construed, the question should be answered in the negative.

Gabrielli, J.

(dissenting in part). It has long been the law in this State that a court in a tax certiorari proceeding cannot grant relief in excess of the relief demanded in the taxpayer’s petition (People ex rel. Universal Business Corp. v Lewis, 242 App Div 888, affd 267 NY 617; Matter of Wright v Commissioner of Assessment & Taxation, 242 App Div 886, affd 267 NY 615; People ex rel. Interstate Land Holding Co. v Purdy, 206 App Div 606, affd 236 NY 609). By its decision today, however, the majority has determined to abandon that rule and to adopt in its stead one which would permit a court, on its own motion, to reduce an assessment below the assessed valuation alleged by the taxpayer throughout the entire proceeding. Because I conclude that this new rule is contrary both to public policy and to the established practice of our courts in civil litigation, I must respectfully cast my vote in dissent, although I do not disagree with majority’s disposition of the other issues in this appeal.

There is little doubt that in an ordinary civil action the plaintiff cannot recover more than the amount specified in the ad damnum clause of his complaint (Michalowski v Ey, 7 NY2d 71, 75; Corning v Corning, 6 NY2d 97, 105; Silbert v Silbert, 22 AD2d 893, 895, affd 16 NY2d 564; see 3 Weinstein-Korn-Miller, NY Civ Prac, par 3017.06, p 30-366). Indeed, the lower courts generally will not even permit a party to amend his ad damnum to increase the amount demanded after a case has been calendared if there is any danger at all that his opponent’s position will be prejudiced (see, e.g., Ryan v Collins, 33 AD2d 966; see, generally, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3025:14, p 484).

Yet in this case, which involves a municipal respondent, the majority has brushed aside this well-settled principle as a mere “pleading technicality” and has permitted recovery in excess of the relief demanded in the pleadings despite the manifest presence of prejudice. Had the city been given fair warning through the pleadings that a greater reduction in assessment would be sought, it might have been able to meet the taxpayers’ claims at trial by introducing proof to demonstrate the inaccuracy of the figure which was ultimately determined to be the correct valuation of the taxpayers’ property. The city had no opportunity to do so, however, because in this case no mention was made of the lower assessment figures until the Appellate Division handed down its decision reducing the assessments below the figures alleged in the taxpayers’ petitions. I can envision no clearer example of prejudice than is suggested by the facts in this case, where the respondent received no notice of the extent of the claim it would be required to disprove until after the case was briefed and argued on appeal.

The majority reasons that there is no unfairness in the instant proceeding because “it is the very purpose of a tax review proceeding To arrive at a fair and realistic value of the property involved.’ ” (At pp 512-513.) This rationale appears to be based upon the assumption that there exists some absolute figure which represents the true full market value of a parcel of realty and that this figure may be ascertained in the abstract without direct reference to the various claims of the parties. As our experience with tax certiorari proceedings demonstrates, however, the assessment of real property is an area fraught with uncertainty. There is no guaranteed method for arriving at an accurate valuation figure, and the most that can be expected from our judicial system is a fair approximation based, upon an objective effort to reconcile of the parties’ conflicting claims. Inasmuch as the courts’ estimates as to the proper valuation figure for a particular property are no more likely to be accurate than are the estimates which the parties have made through their pleadings, it seems somewhat unrealistic to suggest that the abandonment of the Purdy rule will somehow advance the quest for “fair and realistic” valuations in tax certiorari proceedings.

Of even greater concern in this case is the impact that the majority’s holding will have upon the ability of municipal governments to make intelligent budgetary decisions. In order to determine how much money they may appropriate or spend in any given year for essential services and debt service, municipalities must be able to estimate with a fair degree of accuracy the amount of revenue that they will be able to raise through the system of local real property taxation. To be sure, a degree of uncertainty will always be present, since there may always be challenges to individual assessments that will have to be resolved in the courts. The extent of potential revenue loss resulting from such challenges, however, has always been limited by the amount of the tax reductions claimed by the taxpayers in their certiorari petitions. Since these petitions are generally served within a short time after the assessment roll is completed and filed (see Real Property Tax Law, § 702, subd 2), the municipality is ordinarily given early notice of the amount of tax revenues that will remain in jeopardy pending judicial review. Under the rule announced by the majority today, however, the pleadings are no longer controlling. As a consequence, municipalities will be left in doubt about the extent of their potential liability for tax refunds until all of the assessment challenges have been finally resolved by the last appellate court. While this uncertainty may not be of serious import in cases involving individual taxpayers with small land holdings, it could well pose a severe problem when a single large corporate landowner which controls a substantial portion of the tax base challenges its assessment.

For all of the foregoing reasons, I would hold that the relief awarded to the taxpayer cannot exceed the relief demanded in the pleadings and that the amount of reduction awarded by the Appellate Division in the first two above-entitled cases should be modified to conform to the amounts claimed in the petitions.

In Grant Co. v Srogi and Guth Realty v Srogi: Order affirmed, without costs.

Judges Jones, Wachtler, Fughsberg and Meyer concur with Judge Jasen ; Judge Gabrielli dissents in part and votes to modify in a separate opinion in which Chief Judge Cooke concurs.

In Grant Co. v Srogi: Order reversed, with costs, motion for preliminary injunction denied, and question certified answered in the negative.

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

      . As modified by the Appellate Division, the assessment computations are as follows:
      Equalization
      FuII Value Rate Assessment
      Grant Property:
      1971-1972 $12,000,000 45% $540,000
      1973-1974 950,000 43% 408,500
      1975-1976 950,000 40% 380,000
      Guth Property:
      1971-1972 180,000 45% $ 81,000
      1973-1974 150,000 43% 64,500
      1975-1976 150,000 40% 60,000

      . In response to the dissent, a few comments are in order. Inasmuch as the present appeals involve assessment review proceedings pursuant to article 7 of the Real Property Tax Law, we do not reach and, therefore, need not consider the rule in ordinary civil cases which prohibits recovery in excess of the ad damnum clause of the complaint. Nor do we suggest that in a tax review proceeding the values alleged in the petition are meaningless or that relief is to be granted regardless of the prejudice suffered by the respondent taxing authority. Rather, we merely hold that, under the facts of this case, reformation of the petitions to conform with the proof was a remedy which was within the court’s power to grant and which was not affected by any error of law.

       I fear that the holding in this case is representative of a disturbing tendency to brush aside well-settled rules of law when application of the rules would not produce the desired result (see, e.g., Matter of Dudley v Kerwick, 52 NY2d 542). There can be no doubt that ancient legal principles may become outdated necessitating a careful re-exámination of existing precedent. But such re-examination should be undertaken only with the greatest caution, since “there is potential for jurisprudential scandal in a court which decides one way one day and another way the next” (People v Hobson, 39 NY2d 479, 488; compare Greschler v Greschler, 51 NY2d 368 [declaratory judgment action in which complaint fails to state cause of action requires declaration of rights rather than dismissal], with Combustion Eng. v Traveler’s Ind. Co., 53 NY2d 875 [declaratory judgment action in which complaint fails to state cause of action dismissed]). To be sure, our natural sympathies in a given case may lead us to become impatient with the constraints imposed by precedent. We may not, however, permit our sympathies and empty generalizations about “fairness” and “justice” to obscure our fundamental responsibility to apply our own reason as well as the reason of the past to the difficult problems that are placed before us.
      In this case, the majority has chosen to overrule a well-established rule of law solely on the basis of its view that “because the Real Property Tax Law relating to assessment review is remedial in character, it should be construed in such a way that the taxpayer’s right to have his assessment reviewed * * * [is] not * * * defeated by a pleading technicality.” (At p 513.) Because I cannot accept such, generalizations as a substitute for reasoned analysis, I prefer, in accordance with the principle of stare decisis, to adhere to the rule established in our prior decisions.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Priscilla R. Haskins, Appellant, v Loeb Rhoades & Co., Respondent.
    Argued March 24, 1981;
    decided April 28, 1981
    POINTS OF COUNSEL

      Benedict Ginsberg and Milton B. Franklin for appellant.
    I. Assuming the causes of action alleged in the complaint prima facie are barred by section 5-701 (subd a, par 10) of the General Obligations Law, defendant waived that defense by its pretrial sworn admissions that it was liable to plaintiff for her special services referred to in the complaint and had tendered to her the amount if considered appropriate for such services. II. To permit defendant to bar plaintiff from recovering moneys owing to her in connection with the transaction referred to in the complaint, because of section 5-701 of the General Obligations Law, would allow that statute to perpetrate a fraud. Such result is not countenanced under New York law. III. Plaintiff’s action as a cofinder of a business opportunity against defendant as the other finder of that opportunity who received a commission of at least $250,000 from the principal in that transaction, based on defendant’s promise to share that fee with plaintiff, does not come under the ambit of section 45-701 of the General Obligations Law. (Dura v Walker, Hart & Co., 27 NY2d 346.) IV. Assuming arguendo that section 5-701 of the General Obligations Law is applicable to the situation at bar, there are sufficient writings by defendant, to take the contract out of the operation of the statute. (Marks v Cowdin, 226 NY 138.) V. The record establishes a number of material issues which jointly or severally require denial of summary judgment dismissing plaintiff’s complaint.

      Thomas J. Kavaler and John R. Vaughan for respondent.
    I. Both courts below correctly held that plaintiff’s claims are barred by the Statute of Frauds. (Chase & Co. v White, Weld & Co., 311 F Supp 1253; Weisner v Benenson, 275 App Div 324, 300 NY 669; Seif v Cantor, Fitzgerald & Co., 40 AD2d 655; Dura v Walker, Hart & Co., 27 NY2d 346; Smith v Muss, 203 Misc 356, 281 App Div 957; Champlin v Parish, 11 Paige Ch 405; Cozine v Graham, 2 Paige Ch 177; Harris v Knickerbacker, 5 Wend 638; Cameron v Tompkins, 72 Hun 113; Marshall v Ferris, 65 Misc 2d 405.) II. Both courts below correctly granted summary judgment because defendant demonstrated its clear right to such relief and plaintiff failed to demonstrate the existence of a genuine issue of material fact. (Zuckerman v City of New York, 49 NY2d 557; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; De Fren v Russell, 71 AD2d 416.)
   OPINION OF THE COURT

Per Curiam.

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

Plaintiff’s claim that she is entitled to recover a fee for her assistance in the negotiation of a business opportunity is barred by the express terms of section 5-701 (subd a, par 10) of the General Obligations Law. That statute requires that any claim for a so-called “finder’s fee” be based upon a writing duly subscribed. Inasmuch as plaintiff is unable to prove subscription, she is statutorily precluded from recovery as a “finder” upon any express or implied agreement to pay her for her services as such.

Nor can it be said that defendant waived the protection of the statute by admitting that it had discussed the possibility of “special compensation” with plaintiff. Such an admission at most bespeaks an intention to give an employee a special award for her services and can in no way be viewed as inconsistent with defendant’s reliance upon the Statute of Frauds to protect it from plaintiff’s claim that it had entered into an independent agreement to accept plaintiff’s services as a “finder”. Hence, we do not reach and thus do not consider plaintiff’s contention that an oral admission of the existence of the alleged contract, in the course of judicial proceedings or otherwise, would operate to take the case out of the Statute of Frauds.

Finally, we find no merit in plaintiff’s contention that she was a “co-finder” with her former employer. While it is true that when two brokers or finders decide to “pool their efforts and share the benefits”, the agreement to share in the profits of the joint enterprise need not necessarily be in writing (Dura v Walker, Hart & Co., 27 NY2d 346, 350), this narrow exception to the Statute of Frauds applies only to a business enterprise “closely akin to that of joint venture”. Here, as Special Term correctly pointed out, plaintiff has come forward with no evidentiary facts which indicate the existence of any enterprise even remotely resembling a joint venture. Thus, summary judgment was properly granted to defendant and plaintiff’s claim, insofar as it was based upon the theory that she was a “co-finder”, was properly dismissed.

We have examined plaintiff’s remaining contentions and have found them to be without merit.

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

Order affirmed.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Richard Rogers, Appellant.
    Argued March 30, 1981;
    decided May 7, 1981

      POINTS OF COUNSEL

      Louis G. Adolf sen for appellant.
    I. There was no probable cause to arrest defendant and the statements and physical evidence obtained during this illegal detention should be suppressed. (Dunaway v New York, 442 US 200; Brinegar v United States, 338 US 160; Carroll v United States, 267 US 132; People v Morales, 42 NY2d 129, on remand sub nom. Morales v New York, 396 US 102; People v Kocik, 63 AD2d 230; Brown v Illinois, 422 US 590; Mapp v Ohio, 367 US 643.) II. Defendant’s guilt was not proven beyond a reasonable doubt. (People v Bearden, 290 NY 478; People v Cleague, 22 NY2d 363; Matter of Michael K., 56 AD2d 601; People v Suffern, 267 NY 115; People v Montanez, 41 NY2d 53; People v Reed, 40 NY2d 204; People v Lewis, 275 NY 33; People v La Belle, 18 NY2d 405.) III. Numerous trial errors denied defendant a fair trial. (People v Cwikla, 46 NY2d 434; People v De Jesus, 42 NY2d 519; People v Branch, 46 NY2d 645; People v Sellers, 73 AD2d 697; People v Pobliner, 32 NY2d 356; People v Rial, 25 AD2d 28; People v Fitzgerald, 156 NY 253; People v Schwartzman, 24 NY2d 241; People v Molineaux, 168 NY 264.) IV. Defendant was denied his right to a speedy trial. (Klopfer v North Carolina, 386 US 213; People v Singer, 44 NY2d 241; People v McLaurin, 38 NY2d 586; Barker v Wingo, 407 US 514; People v Mendez, 63 AD2d 69; Strunk v United States, 412 US 434; People v Taranovich, 37 NY2d 442.)

      Eugene Gold, District Attorney (Peter Weinstein and Barbara L. Linzer of counsel), for respondent.
    I. The court properly denied appellant’s motion to suppress his admissions and the bloodstained boots recovered from the Kohn apartment as they were not the tainted fruits of any unlawful detention. (Brown v Illinois, 422 US 590; Dunaway v New York, 442 US 200; People v Martin, 50 NY2d 1029; People v Tutt, 38 NY2d 1011; United States v Crews, 445 US 463; People v Cosme, 48 NY2d 286; People v Martinez, 37 NY2d 662; People v Zabrocky, 26 NY2d 530.) II. Appellant’s guilt was proven beyond a reasonable doubt. (People v Barnes, 50 NY2d 375; People v Rumble, 45 NY2d 879; People v Bretagna, 298 NY 323; People v Castillo, 47 NY2d 270; People v Leyra, 1 NY2d 199.) III. Appellant received a fair trial. (Brady v Maryland, 373 US 83; People v Argibay, 45 NY2d 45; People v Zabrocky, 26 NY2d 530; People v Branch, 46 NY2d 645; People v Sellers, 73 AD2d 697; People v Pobliner, 32 NY2d 356; People v Webster, 139 NY 73; People v Martin, 50 NY2d 1029; People v Vidal, 26 NY2d 249.) IV. Appellant’s speedy trial claim was waived. (People v Adams, 46 AD2d 749, 38 NY2d 605; People v Rodriguez, 68 AD2d 814, 50 NY2d 553.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was convicted of felony murder and related offenses for killing and raping Linda Jack in Brooklyn in the summer of 1974. The Appellate Division affirmed, without opinion. The defendant appeals. The primary issue is whether admissions made by the defendant to the police following an arrest without probable cause were properly allowed into evidence.

On the morning of August 10, 1974, the partly clad body of Linda Jack was found in an alleyway of a residential area of Coney Island. She had been stabbed in the throat and abdomen. A broad path of blood indicated that after being stabbed her body was dragged along the sidewalk and into an alleyway where, while dying, she was raped. Personal property belonging to the victim was found under a car near the scene of the stabbing. A palm print, found on the door of the car. was later identified, during the trial, as belonging to the defendant. In addition, there was the imprint from the sole of a corrugated boot found in the pool of blood at the scene of the stabbing.

Despite the overwhelming proof of guilt at trial the record of the suppression hearing indicates, that at the time defendant was taken into custody the limited information the police possessed which connected the defendant to the murder did not constitute probable cause for an arrest.

The evidence at the suppression hearing revealed that following the discovery of Linda Jack’s body in the alleyway, Detective Edward Zigo sought leads by canvassing bars and restaurants in the area inquiring whether the victim, who at the time of her death had a blood alcohol level of .18%, had been seen the night before. Detective Zigo learned that she had been seen at that time in the company of a person described only as “Ritchie”, a young white male, approximately 5 feet 10 inches to 5 feet 11 inches and weighing 200 pounds, with a pock-marked face. In addition the detective was informed that “Ritchie” had a girlfriend whose brother worked at “a frozen food outfit in Brooklyn.”

The next day, the officers sought out the brother, whose name they had been told was Paul. When the officers arrived at the frozen food establishment Paul was out and the officers decided to wait. After a time they heard a woman’s voice say “[n]o ‘Ritchie’, Paul is not here.” Concluding that the person to whom the remark was addressed met the general description of the person last seen with the murder victim, the officers took “Ritchie” into custody without any preliminary inquiries to determine his possible connection to the crime.

Of course, at the time the police confronted the defendant they could, acting on reasonable suspicion, have stopped him long enough to make inquiries concerning his possible involvement in the crime (see People v De Bour, 40 NY2d 210). It is clear that no such inquiries were made, and, by Detective Zigo’s own account of the facts, the defendant was peremptorily arrested. Therefore, since it can be said as a matter of law that at the time of the arrest there was no probable cause (cf. People v Brnja, 50 NY2d 366), a period of illegal detention began.

However, it must be emphasized that the Constitution does not require a person illegally detained be forever granted immunity from prosecution or conviction (United States v Crews, 445 US 463, 474). Indeed, the defendant himself does not make such a claim here, but contends only that certain statements he made subsequent to his illegal arrest should have been suppressed as the products of the illegal detention (cf. Wong Sun v United States, 371 US 471).

The defendant was not immediately questioned when he was taken to the police station. Instead, the officers left to speak to defendant’s girlfriend who they found at the frozen food establishment still waiting for her brother. Upon inquiry by the officers, she mentioned that although defendant rented an apartment across the street from hers, he frequently stayed with her, her brother and her mother at their apartment. The detectives requested that they be permitted to examine the clothes which the defendant kept at her apartment and she consented. A pair of the defendant’s boots apparently covered with blood were found.

Approximately three hours after defendant’s arrest and after advising defendant of his rights, Detective Zigo began the interrogation. In doing so he confronted defendant with the boots as well as with a bloody shirt discovered by the police at the scene of the crime. Defendant admitted owning the boots, but denied that the shirt was his. He then stated that he did not wish to undergo further questioning without first speaking to his brother, who was a police officer. The brother was called, and after defendant conversed with him privately, defendant gave two more statements which, like the first, were used by the People at trial. Defendant argues on this appeal that all three statements resulted directly from exploitation of the illegal arrest and therefore should have been suppressed.

While it is generally recognized that statements derived from an illegal detention will be suppressed and cannot be used at trial (Wong Sun v United States, 371 US 471, supra), it is equally true that the exclusionary rule is not automatic, and will not be applied if the impact of the illegal arrest does not closely touch upon the challenged evidence (see Nardone v United States, 308 US 338, 341). Although the prosecution will be denied the “poisoned fruit” from the “poisoned tree”, at some point the chain of causation leading from the illegal activity to the challenged evidence may become so attenuated that the “taint” of the original illegality is removed (United States v Crews, 445 US 463, 471, supra; Wong Sun v United States, 371 US 471, supra). Those situations in which the detrimental impact of the illegal police action on the challenged evidence becomes so minute as to no longer justify the penalty of suppression under the exclusionary rule (see People v Martinez, 37 NY2d 662, 670), have been commonly grouped by the Supreme Court into two categories: where the evidence challenged was the product of a source independent of the defendant’s detention (see Silverthorne Lbr. Co. v United States, 251 US 385, 392); and where the discovery of the challenged evidence was attenuated from the illegal activity by a significant intervening event which justified the conclusion that that evidence was not the product of the illegal activity (see Wong Sun v United States, 371 US 471, supra).

At the suppression hearing the trial court concluded that the challenged statements were the result of confronting the defendant with the physical evidence and defendant’s conversation with his brother. The question, then, is whether these significant intervening events are legally sufficient to justify the conclusion that the taint of the illegal detention effectively was removed. We agree with the courts below that they are.

There is ample support for the conclusion that the boots were discovered not as a result of defendant’s detention, but rather as a result of the previously established lead between the “Ritchie” who had been seen with the deceased, and a girlfriend whose brother worked in Brooklyn. The police received no aid from defendant in tracking down this lead, and it was the independent act of consent by the girlfriend which resulted in the discovery of the boots. Similarly, the discovery of the bloody shirt was totally independent of the arrest, as it had been found at the death scene prior to any detention at all. As already noted, evidence unconnected with the detention need not be suppressed, since it was not the fruit of the illegal detention (see United States v Crews, 445 US 463, 475, supra; Sil verthorne Lbr. Co. v United States, 251 US 385,392, supra). A logical corrollary of this conclusion is that because the evidence was legally seized, it was proper to present it to the defendant for an explanation. Confronting the defendant with this evidence can become a significant attenuating factor which the trial court reasonably could have considered, and indeed found, to be a precipitating cause of the admissions.

There is no indication that the arrest was orchestrated in such a manner as to intimidate or provoke defendant so as to overcome his reluctance to communicate with the officers (see Brown v Illinois, 422 US 590, 604). The defendant was not mistreated and was not questioned during the initial period of his detention. Although improper, the arrest was designed to hold the defendant, and not to provide the police with an opportunity to discover evidence which was not otherwise available (see United States v Crews, 445 US 463, 475, supra). Of course, after the evidence was secured and the admissions made, the detention was supported by probable cause.

Finally, we reject defendant’s reading of Dunaway v New York (442 US 200, supra), which he contends requires suppression of all evidence gathered during an illegal detention. The fact that an illegal detention is not to be construed as a predicate for immunity from the gathering or introduction of incriminating evidence (see United States v Crews, 445 US 463, 474, supra) is supported by the fact that in Brown v Illinois (supra), as well as other cases, the United States Supreme Court emphasized that there are legitimate ways to remove the taint of illegality. Significantly, as distinguished from this case, Dunaway involved the narrower question of the propriety of custodial detentions for investigative purposes when probable cause does not exist. While we agree that such an unreasonable detention violates the Fourth Amendment, we decline to extend the impact of that holding to require exclusion, after such a detention, of evidence acquired independently of the illegal arrest.

The exclusionary rule exacts a heavy penalty, and although its operation is justified, the exclusion of evidence should be for therapeutic reasons and should not be used as a punitive measure. The application of the exclusionary rule requires a commonsense appraisal of whether the suppression of the challenged evidence will remove in the future the motive for similar improper police conduct. In this analysis, it has never been enough to show that evidence must be suppressed simply because it was discovered subsequent to an illegal arrest; it must in addition be shown that the police exploited the illegal detention in such a way as to establish that it was the detention which produced the challenged statements. In a case such as this, where the trial court is satisfied on sufficient evidence that the required nexus between the detention and the statements is absent, there would be no deterrence and therefore no reason to invoke the exclusionary rule (cf. Dunaway v New York, 442 US 200, 218, supra).

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

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

Order affirmed.

       Although defendant was not told that he was under arrest at this time, but rather that he was being taken in for questioning, it is clear that his freedom to leave was effectively terminated and as Detective Zigo stated, he was under arrest for “all intents and purposes” (see Dunaway v New York, 442 US 200, 212-213; People v Allende, 39 NY2d 474; People v Cantor, 36 NY2d 106).


text:
    Town of Hardenburgh, Ulster County, New York, et el., Appellants, v State of New York et al., Respondents.
    Argued February 11, 1981;
    decided April 30, 1981

      POINTS OF COUNSEL

      Stephen L. Oppenheim for appellants.
    I. Chapter 738 of the Laws of 1978 is unconstitutional. (Wolman v Essex, 342 F Supp 399; Lemon v Kurtzman, 403 US 602; Meek v Pittenger, 421 US 349; Committee for Public Educ. v Nyquist, 413 US 756; Walz v Tax Comm., 397 US 664; Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; Matter of Swedenborg Foundation v Lewisohn, 40 NY2d 87; Hotel Dorset v Trust for Cultural Resources of City of N. Y., 46 NY2d 358.) II. Chapter 738 made substantive changes and is not merely a clarification. (Washington Hgts. M. E. Church v Mayor, Aldermen & Commonalty of City of N. Y., 20 Hun 297; Hebrew Free School Assn. v Mayor of City of N. Y., 4 Hun 446; People ex ret. Medical Coll. & Hosp. for Women v Campbell, 93 NY 196; Kupperman v Congregation Nusach Sfard of Bronx, 39 Misc 2d 107; Rector, Churchwardens & Vestrymen of Church of Holy Trinity v Melish, 3 NY2d 476; Walker Mem. Baptist Church v Saunders, 285 NY 462; Bristor v Burr, 120 NY 427.) III. The individual plaintiffs have standing to bring this action. (Committee for Public Educ. v Nyquist, 413 US 756; Lemon v Kurtzman, 403 US 602; Walz v Tax Comm., 397 US 664; Murdock v Pennsylvania, 319 US 105; Douglas v Jeannette, 319 US 157.) IV. The officials of the Town of Hardenburgh have standing to bring this action. (Matter of Beaudoin v Toia [Jorczak], 45 NY2d 343.) V. The Town of Hardenburgh has standing to bring this action. (Bowen v State Bd. of Social Welfare of State of N. Y., 55 AD2d 235; County of Sullivan v Filippo, 64 Misc 2d 533; Matter of Beaudoin v Toia [Jorczak], 45 NY2d 343.)

      Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for respondents.
    I. Chapter 738 was a clarifying amendment having the purpose and effect of strengthening the State’s long-standing policy to exempt religiously held real property from taxation. (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Baxter v McDonnell, 155 NY 83; Matter of State of New York v Garlick Parkside Mem. Chapels, 30 AD2d 143, 23 NY2d 754; Walz v Tax Comm., 397 US 664; St. Nicholas Cathedral of Russian Orthodox Church in North Amer. v Kedroff, 302 NY 1; Mount v Tuttle, 183 NY 358.) II. (A) Plaintiff municipality and plaintiff officers of such municipality do not have standing to challenge the constitutionality of chapter 738 of the Laws of 1978. (B) The individual plaintiffs failed to allege sufficient facts to overcome the presumption of constitutionality of the statute. (Black Riv. Regulating

      Dist. v Adirondack League Club, 307 NY 475; City of Buffalo v State Bd. of Equalization & Assessment, 26 AD2d 213; Williams v Mayor, 289 US 36; Trenton v New Jersey, 262 US 182; Newark v New Jersey, 262 US 192; Town of Black Brook v State of New York, 41 NY2d 486; Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283; Hotel Dorset v Trust for Cultural Resources of City of N. Y., 46 NY2d 358; Matter of Schneider v Rockefeller, 31 NY2d 420.)
   OPINION OF THE COURT

Wachtler, J.

The plaintiffs are the Town of. Hardenburgh and various town officials, who sue in both their individual and official capacities. They commenced this declaratory judgment action on behalf of those property owners residing in the town who claim they would be entitled to a religious property tax exemption under section 436 of the Real Property Tax Law as that statute was worded prior to January 1, 1979, but who, under the amended wording of the law, are now unable to qualify for exemption.

The previous version of section 436 reads as follows: “Real property held by an officer of a religious denomination shall be entitled to the same exemption from taxation, special ad valorem levies and special assessments, subject to the same conditions and exceptions, as property owned by a religious corporation.” (L 1958, ch 959.)

The current version states: “Real property held in trust by a clergyman or minister of a religious denomination for the benefit of the members of his incorporated church or unincorporated church shall be entitled to the same exemption from taxation, special ad valorem levies and special assessments as authorized by section four hundred twenty-one of this chapter; provided that such real property shall satisfy all the conditions and exceptions set forth therein including that the property so held be used exclusively for one or more of the purposes enumerated in paragraph (a) of subdivision one of section four hundred twenty-one of this chapter.” (L 1978, ch 738.) Plaintiffs allege that by requiring church officers to hold the property in trust as a clergyman or minister in order to qualify their property for exemption, the current version contravenes the religious rights under the First Amendment of the United States Constitution of landowners who are officers in the Universal Life Church. The Appellate Division held, in agreement with Special Term, that the Town of Hardenburgh and the individual plaintiffs suing in their official capacity were without standing. As for the plaintiffs suing in their individual capacity, the court below held that insufficient facts were alleged to raise a justiciable controversy concerning whether these persons actually experienced interference with their First Amendment rights.

At the outset we note that the appeal taken purportedly as of right by the town and the town officials must be dismissed for the reason that a substantial constitutional question is not directly involved. The basis of the Appellate Division’s affirmance of the dismissal of the complaint of these plaintiffs was not on the merits of the First Amendment challenge, but rather on consideration of the standing of these parties to bring this suit against the State (see Town of Black Brook v State of New York, 41 NY2d 486, 488). Accordingly, it cannot be said that the asserted constitutional issue was a basis of the decision below. The appeal to this court on that constitutional issue, therefore, does not lie as of right (Cohen and Karger, Powers of the New York Court of Appeals, § 57).

As regards the individual plaintiffs, no such procedural impediment exists, and we disagree with the court below that insufficient allegations are presented to pose a justiciable controvesry. True, it would be ill-advised on such an undeveloped record as this to declare the statute constitutional in all instances, but we are free, nonetheless, to fashion appropriate declaratory relief, and to determine on the merits that insofar as the statute is applied to these plaintiffs, the constitutional challenge should be rejected (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630, 637).

The plaintiffs do not show that the statute does not apply evenhandedly with regard to various religious groups (see Walz v Tax Comm., 397 US 664, 673), nor, more fundamentally, have they shown any particular religious practice or belief with which the statute interferes. The supposed infirmities do not, insofar as they apply to the plaintiffs, impose anything more than a reasonable regulation by the State on the manner in which property subject to the religious exemption is to be held.

The State has a significant interest in this area, and the apparent purpose of this enactment — to distinguish church property diverted from the benefit of the congregation into private or nonreligious use — has not been shown to have an additional invidious effect (see McGowan v Maryland, 366 US 420). If the property which plaintiffs seek to have exempted is indeed church property, we do not see what First Amendment right the plaintiffs have to hold the title as private individuals. If, on the other hand, the property truly is privately owned and used, then the effect of the statute in preventing its exemption is no more than a justifiable action to protect the municipal tax base (cf. Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143).

Accordingly, the order of the Appellate Division should be modified so as to include a declaration that chapter 738 of the Laws of 1978 is constitutional insofar as it affects this case, and, as so modified, affirmed, with costs to defendants.

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

On appeal by the town and town officials: Appeal dismissed, without costs.

On appeal by the remaining plaintiffs: Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to defendants.