        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1120
CA 15-00229
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


TOWN OF AMHERST, A MUNICIPAL CORPORATION,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BREWSTER MEWS HOUSING CO., INC., BREWSTER
MEWS ASSOCIATES, LP, A PARTNERSHIP,
DEFENDANTS-APPELLANTS,
WILLIAMSVILLE CENTRAL SCHOOL DISTRICT AND
COUNTY OF ERIE, DEFENDANTS-RESPONDENTS.


NESPER, FERBER & DIGIACOMO, LLP, AMHERST (GABRIEL J. FERBER OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

BENNETT, DIFILIPPO & KURTZHALTS, LLP, HOLLAND (RONALD P. BENNETT OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.

HODGSON RUSS LLP, BUFFALO (MICHAEL B. RISMAN OF COUNSEL), FOR
DEFENDANT-RESPONDENT WILLIAMSVILLE CENTRAL SCHOOL DISTRICT.

BEGNART & DEMARCO, LLP, TONAWANDA (SEAN R. MCDERMOTT OF COUNSEL), FOR
DEFENDANT-RESPONDENT COUNTY OF ERIE.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered July 30, 2014. The order, insofar as
appealed from, denied in part the motion of defendants Brewster Mews
Housing Co., Inc. and Brewster Mews Associates, LP, a Partnership,
seeking to dismiss plaintiff’s amended complaint against them.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
in its entirety and the amended complaint against defendants Brewster
Mews Housing Co., Inc. and Brewster Mews Associates, L.P., a
Partnership, is dismissed.

     Memorandum: Defendants-appellants (defendants) appeal from an
order that denied in part their motion to dismiss the amended
complaint against them. Defendants own an apartment complex that
provides housing to low-income senior citizens. The complex was
developed in 1978 pursuant to Private Housing Finance Law § 33. Upon
defendants’ application, plaintiff adopted a resolution exempting
defendants from real property taxation. The parties also executed a
payment in lieu of taxes agreement pursuant to which defendants were
required to make annual payments of $550 per unit or $118,250, less
                                 -2-                          1120
                                                         CA 15-00229

special assessments levied against the property. The parties agree
that defendants made payments in lieu of taxes every year from 1978 to
2013.

     On or about March 4, 1996, defendants entered into an “Amended
and Restated Declaration of Interest and Equity Agreement,” which
provided that defendants would no longer be governed by article 2 of
the Private Housing Finance Law, and thereby rendered defendants
ineligible for a real property tax exemption under section 33.
According to the amended complaint, defendants never advised plaintiff
of their reorganization. Thus, plaintiff continued the exemption from
1996 to 2013, and defendants continued to make payments in lieu of
taxes. Plaintiff alleged that it discovered in 2013 that defendants
no longer qualified for the exemption and, believing that no remedy
was available to it through the RPTL, commenced this action seeking
the value of the unassessed taxes from 1996 to 2013 based on, inter
alia, unjust enrichment and breach of an implied contract.

     Defendants moved to dismiss the amended complaint for failure to
state a cause of action, contending that plaintiff’s exclusive remedy
to recover unassessed taxes was pursuant to the RPTL. The court
granted defendants’ motion with respect to one cause of action, but
denied the motion with respect to the remaining two causes of action,
for unjust enrichment and breach of implied contract. We agree with
defendants that the court should have granted their motion in its
entirety.

     In deciding a motion to dismiss, the court must “determine only
whether the facts as alleged fit within any cognizable legal theory”
(Leon v Martinez, 84 NY2d 83, 87-88). We conclude that plaintiff may
not recover the value of taxes it never assessed from defendants under
either a theory of unjust enrichment or breach of an implied contract.
“The basis of a claim for unjust enrichment is that the defendant has
obtained a benefit which in ‘equity and good conscience’ should be
paid to the plaintiff” (Corsello v Verizon N.Y., Inc., 18 NY3d 777,
790, rearg denied 19 NY3d 937). However, “unjust enrichment is not a
catchall cause of action to be used when others fail” (id.), and we
conclude that plaintiff may not assert an unjust enrichment cause of
action as a substitute for assessing and levying taxes in accordance
with the RPTL. We note in any event that, contrary to the allegation
in the amended complaint that defendants failed to provide notice of
their reorganization, the record establishes that defendants submitted
a letter from their president to plaintiff’s Town Supervisor dated
February 29, 1996, advising plaintiff’s Town Supervisor that
defendants would no longer qualify for the Private Housing Finance Law
§ 33 exemption as of March 5, 1996.

     We further conclude that plaintiff has no cause of action for
breach of an implied contract. Although a municipality may be a party
to an implied contract under some circumstances, e.g., where it
provides a utility to the public (see Matter of Bond St. & Weatherbest
Slip Boathouse Owners v City of N. Tonawanda, 62 AD2d 1136, 1136-
1137), we reject plaintiff’s contention that a breach of an implied
contract cause of action lies in the circumstances present here.
                                 -3-                          1120
                                                         CA 15-00229

“Taxes do not rest upon contract, express or implied. They are
obligations imposed upon citizens to pay the expenses of government.
They are forced contributions, and in no way dependent upon the will
or contract, express or implied, of the persons taxed” (City of
Rochester v Bloss, 185 NY 42, 47-48).




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
