                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   522398
________________________________

In the Matter of EVELIN A.
   JIMENEZ et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   TAXATION AND FINANCE et al.,
                    Respondents.
________________________________


Calendar Date:   September 13, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.

                             __________


      Hodgson Russ, LLP, Albany (William J. Comiskey of counsel),
for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for respondents.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (McNamara, J.),
entered March 16, 2015 in Albany County, which, in a combined
proceeding pursuant to CPLR article 78 and action for declaratory
judgment, granted respondents' motion to dismiss the
petition/complaint.

      Petitioners were employed as tax preparers between 2009 and
2011. Respondent Department of Taxation and Finance (hereinafter
DTF) examined personal income tax returns prepared by petitioners
and assessed penalties for faulty preparation work against each
that ran into the hundreds of thousands of dollars (see Tax Law
§ 685 [aa] [1]). Petitioners did not challenge the penalties,
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and they became past due.

      The year 2013 also saw the Legislature direct respondents
Commissioner of Taxation and Finance and Commissioner of Motor
Vehicles to collaborate on "a program to improve tax collection
through the suspension of drivers' licenses of taxpayers with
past-due tax liabilities equal to or in excess of" $10,000 (Tax
Law § 171-v [1], as added by L 2013, ch 59, part P, § 1;
see Vehicle and Traffic Law § 510 [4-f], as added by L 2013, ch
59, part P, § 2). The Commissioners did so and, by letters dated
October 25, 2013, DTF placed each petitioner on notice that his
or her driver's license was in jeopardy due to his or her unpaid
tax liability. Petitioners were also advised that, if they
failed to respond within 60 days, DTF would provide the necessary
information to respondent Department of Motor Vehicles
(hereinafter DMV) so that the license suspensions could occur.
After an abortive attempt by counsel for petitioners to argue
that the penalties were not "past-due tax liabilities"
encompassed by Tax Law § 171-v, DTF referred the matters to DMV.
DTF, for reasons that are not clear, requested that DMV cancel
license suspension orders issued in March 2014. DTF thereafter
directed DMV to proceed and, on May 22, 2014, DMV issued a second
set of license suspension orders that took effect on June 5,
2014.

      Petitioners commenced this combined CPLR article 78
proceeding and declaratory judgment action on September 19, 2014.
The petition/complaint sought, as is relevant here, a declaration
that DTF did not have recourse to the procedures of Tax Law
§ 171-v for unpaid tax preparer penalties and the annulment of
the ensuing license suspension orders. Respondents, in lieu of
serving an answer, moved to dismiss the petition/complaint on a
variety of grounds. Supreme Court agreed that petitioners'
challenges against DTF and its Commissioner were time-barred and
that those against DMV and its Commissioner failed to state a
cause of action and, as such, granted respondents' motion.
Petitioners now appeal.

      Respondents point out that judicial review of the
complained-of actions has been constrained by Tax Law § 171-v (5)
and Vehicle and Traffic Law § 510 (4-f) (3), but those statutes
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in no way foreclose limited review to ensure "that [an]
administrative official has not acted in excess of the grant of
authority given him [or her] by statute or in disregard of the
standard prescribed by the [L]egislature" (Matter of Guardian
Life Ins. Co. of Am. v Bohlinger, 308 NY 174, 183 [1954]; see New
York City Dept. of Envtl. Protection v New York City Civ. Serv.
Commn., 78 NY2d 318, 322-323 [1991]; Matter of De Guzman v State
of N.Y. Civ. Serv. Commn., 129 AD3d 1189, 1190 [2015], lv denied
26 NY3d 913 [2015]). Petitioners advance such arguments but,
upon our review of the record, we agree with Supreme Court that
their claims must nevertheless be dismissed.

      The parties are in agreement that petitioners' challenges
to the determinations of DTF are subject to the four-month
statute of limitations set forth by CPLR 217 (1), which "begins
to run when 'the determination to be reviewed becomes final and
binding upon the petitioner'" (Matter of School Adm'rs Assn. of
N.Y. State v New York State Dept. of Civ. Serv., 124 AD3d 1174,
1176 [2015], lv denied 26 NY3d 904 [2015], quoting CPLR 217 [1];
see Matter of Banos v Rhea, 25 NY3d 266, 276 [2015]). A
determination is final and binding when two requirements are
satisfied: "[f]irst, the agency must have reached a definitive
position on the issue that inflicts actual, concrete injury and
second, the injury inflicted may not be prevented or
significantly ameliorated by further administrative action or by
steps available to the complaining party" (Matter of Best
Payphones, Inc. v Department of Info. Tech. & Telecom. of City of
N.Y., 5 NY3d 30, 34 [2005]; see Walton v New York State Dept. of
Correctional Servs., 8 NY3d 186, 194 [2007]).

      DTF is directed to "provide notice to the taxpayer of his
or her inclusion in the license suspension program no later than
[60] days prior to the date [it] intends to inform the
[C]ommissioner of [M]otor [V]ehicles" of that inclusion (Tax Law
§ 171-v [3]). "[I]f the taxpayer has not challenged the notice
pursuant to subdivision five of this section and the taxpayer has
failed to satisfy the past-due tax liabilities or make"
satisfactory payment arrangements within the 60 days that follow,
DTF is commanded to give the necessary information to DMV so
"that the taxpayer's driver's license shall be suspended" (Tax
Law § 171-v [4]). Upon receipt of that information, the
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Commissioner of Motor Vehicles or a designee has no discretion
and "shall suspend the license of such person to operate a motor
vehicle" without further ado (Vehicle and Traffic Law § 510 [4-f]
[2]; see Vehicle and Traffic Law § 510 [4-f] [3]).

      DTF gave the requisite notice to petitioners in its October
25, 2013 correspondence, advising them that DTF was proposing the
suspension of their drivers' licenses and that the suspensions
would occur unless petitioners took sufficient steps to avoid
that outcome within 60 days. Petitioners acknowledge that they
attempted to resolve the matters during the 60-day period but
were unsuccessful. The October 25, 2013 letters were accordingly
"unambiguous" as to their potential effect and, when their
"effect [became] certain" after petitioners failed to reach an
accord with DTF in the ensuing 60 days, they became final and
binding determinations for purposes of CPLR 217 (1) (Matter of
Edmead v McGuire, 67 NY2d 714, 716 [1986]; cf. Matter of
Carnevale v City of Albany, 68 AD3d 1290, 1291 [2009]). The
subsequent dithering of DTF in making the necessary
communications to DMV did not toll or extend the limitations
period in the absence of any suggestion that it stemmed from "a
de novo or fresh and complete examination of the matter based on
newly presented evidence" (Matter of Boston Culinary Group, Inc.
v New York State Olympic Regional Dev. Auth., 18 AD3d 1103, 1105
[2005] [internal quotation marks and citation omitted], lv denied
5 NY3d 712 [2005]), nor did the fact that DMV did not take the
ministerial step of issuing the license suspension orders until
later (see Matter of Edmead v McGuire, 67 NY2d at 716; Matter of
Novillo v Board of Educ. of Madison Cent. School Dist., 17 AD3d
907, 909 [2005], lv denied 5 NY3d 714 [2005]). This proceeding
was commenced nine months after the statutory period began to run
and, as such, Supreme Court correctly dismissed the request for
declaratory relief as time-barred (see Matter of EZ Props., LLC v
City of Plattsburgh, 128 AD3d 1212, 1213-1214 [2015]; Matter of
Boston Culinary Group, Inc. v New York State Olympic Regional
Dev. Auth., 18 AD3d at 1104-1105).

      Petitioners also challenged the ensuing license revocation
orders issued by DMV as erroneous but, as noted above, the
Commissioner of Motor Vehicles or a designee "shall suspend the
[driver's] license" of a person once notified by DTF that he or
                              -5-                  522398

she has not satisfied or arranged to pay off past-due tax
liabilities (Vehicle and Traffic Law § 510 [4-f] [2] [emphasis
added]; see Tax Law § 171-v [2], [4]). There is nothing improper
in an administrative official performing a ministerial task
imposed upon him or her by the Legislature and, thus,
petitioners' challenge to the suspension orders fails on its face
and was properly dismissed.

      Petitioners' remaining contentions, to the extent that they
are not academic in light of the foregoing, have been examined
and rejected.

     McCarthy, J.P., Garry, Clark and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
