| Matteawan On Main, Inc. v City of Beacon |
| 2013 NY Slip Op 05680 [109 AD3d 590] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Matteawan On Main, Inc., Respondent, v City ofBeacon, Appellant. |
—[*1] Bloom & Bloom, P.C., New Windsor, N.Y. (Robert N. Isseks of counsel), forrespondent.
In an action, inter alia, to recover money had and received, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Dutchess County(Sproat, J.), dated September 2, 2011, as, upon remittitur from this Court by decision andorder dated May 24, 2011 (seeMatteawan On Main, Inc. v City of Beacon, 84 AD3d 1183 [2011]), deniedthose branches of its motion which were pursuant to CPLR 3211 (a) to dismiss the first,third, and fifth causes of action asserted in the amended complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred bythe applicable statute of limitations, a defendant bears the initial burden ofdemonstrating, prima facie, that the time within which to commence the action hasexpired (see Jalayer vStigliano, 94 AD3d 702, 703 [2012]; Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850[2011]; Rakusin v Miano,84 AD3d 1051 [2011]). The burden then shifts to the plaintiff to raise an issue offact as to whether the statute of limitations was tolled or was otherwise inapplicable, orwhether it actually commenced the action within the applicable limitations period(see Jalayer v Stigliano, 94 AD3d at 703; Williams v New York City Health & Hosps. Corp., 84 AD3d1358 [2011]). To make a prima facie showing, the defendant must establish, interalia, when the plaintiff's cause of action accrued (see Swift v New York Med. Coll., 25 AD3d 686, 687[2006]).
Here, the plaintiff is seeking a refund of the overpayment of taxes, which is properlycharacterized as an action to recover money had and received, and sounds in quasicontract (see Matteawan OnMain, Inc. v City of Beacon, 84 AD3d 1183, 1185 [2011]; Rocks & Jeans vLakeview Auto Sales & Serv., 184 AD2d 502 [1992]; Riverdale Country Schoolv City of New York, 13 AD2d 103, 105 [1961], affd 11 NY2d 741 [1962]).A cause of action to recover money had and received accrues when the taxes were paid(see Regional EconomicCommunity Action Program, Inc. v Enlarged City School Dist. of Middletown, 18NY3d 474 [2012]; Matter of First Natl. City Bank v City of N.Y. Fin.Admin., 36 NY2d 87, 93 [1975]; Trimmer v City of Rochester, 134 NY 76,77 [1892]; North Salem Cent.School Dist. v Mahopac Cent. School Dist., 1 AD3d 418, 419 [2003];Matter of Scarborough School Corp. v Assessor of Town of Ossining, 97 AD2d476, 476-477 [1983]). Although the defendant, the City of Beacon, contends that thefirst, third, and fifth causes of action asserted in the amended complaint accrued whenthe plaintiff [*2]paid the disputed taxes, it offered noevidence to establish when those taxes were paid. Thus, the City failed to establish itsprima facie entitlement to relief pursuant to CPLR 3211 (a) (5), and that branch of themotion was properly denied (see Swift v New York Med. Coll., 25 AD3d at687).
We reject the City's contention that the Supreme Court should have granted thatbranch of its motion which was to dismiss the first, third, and fifth causes of actionasserted in the amended complaint pursuant to CPLR 3211 (a) (7) because the plaintifffailed to allege that it paid the taxes in question under protest. Generally, there can be norecovery of taxes paid unless the payments were made involuntarily, i.e., under protest orduress (see Video Aid Corp. v Town of Wallkill, 85 NY2d 663, 666-667 [1995];Mercury Mach. Importing Corp. v City of New York, 3 NY2d 418, 425 [1957];Community Health Plan vBurckard, 3 AD3d 724, 725 [2004]; Bias Limud Torah v County ofSullivan, 290 AD2d 856, 857-858 [2002], amended 305 AD2d 972 [2003]).However, recovery may be had without protest where the tax has been paid due tomaterial mistake of fact (see Mercury Mach. Importing Corp. v City of NewYork, 3 NY2d at 425; Adrico Realty Corp. v City of New York, 250 NY 29[1928]).
Contrary to the City's contention, the plaintiff's payments are alleged to have beenmade under a mistake of fact. The gravamen of the plaintiff's action is that it paid its realproperty taxes because it was unaware that the City had miscalculated the tax ratesapplied to homestead and nonhomestead properties and without knowledge that themiscalculation resulted in an incorrect apportionment between homestead andnonhomestead properties and excessive taxes for a number of years. Therefore, under thecircumstances alleged in the complaint, the protest requirement is inapplicable (seeGenesee Brewing Co. v Village of Sodus Point, 126 Misc 2d 827 [1984], affd forreasons stated 115 AD2d 313 [1985]). Accordingly, that branch of the motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the first, third, and fifth causes of actionasserted in the amended complaint for failure to state a cause of action also was properlydenied. Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.