ALBANY, N.Y. -- New York State Supreme Court Justice E. Michael Kavanaugh has dismissed the New York Association of Convenience Stores' (NYACS) tax fairness lawsuit against Governor George Pataki, his tax commissioner and wholesale distributors who the association said illegally supply tax-free cigarettes to Native American stores.
Kavanagh said NYACS and its co-plaintiffs, Nice N Easy Grocery Shoppes of Canastota, N.Y., and MWS Enterprises of East Amherst, N.Y., lacked legal standing to bring the lawsuit.
Thus, according to NYACS, [image-nocss] the case was not decided on the merits of whether the Pataki administration is obligated to enforce the state law that took effect March 1, 2006, requiring the state to collect taxes on motor fuel and cigarettes sold by Indian retailers to non-Indian New Yorkers. That question remains unanswered. Pataki and his tax department have refused to enforce the law since it took effect.
"We're kind of puzzled," said NYACS president James Calvin, noting that Attorney General Eliot Spitzer represented the governor and tax commissioner in court and raised the "standing" issue. "If the chief elected official of the state doesn't feel like enforcing a law that was duly enacted by the legislature, and the chief law enforcement official of the state defends that defiance of the constitution, then who does have standing to challenge it in court?"
NYACS was not notified of the decision until Thursday, December 7, even though it was dated Nov. 17, 2006, the same day Pataki announced he was nominating Kavanagh to be elevated to the Appellate Division of State Supreme Court, the group said.
Calvin said it is premature to say whether NYACS will appeal the standing decision, but that "NYACS will never abandon [its] quest for tax fairness for licensed convenience stores."
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