Appeal from a judgment of the Supreme Court (McNamara, J.), entered November 3, 2011 in Albany County, which dismissed petitioner’s application, in a combined proceeding pursuant to CELR article 78 and action for declaratory judgment, to review a determination of respondent Empire Zone Designation Board revoking petitioner’s certification as an empire zone business enterprise.
In 2002, petitioner, the owner of a shopping mall, was certified as an empire zone business enterprise, allowing it to receive
Supreme Court properly determined that General Municipal Law § 959 (w) does not violate the NY Constitution (see NY Const, art III, § 22). The power to tax lies solely with the Legislature and may not be delegated to an administrative agency (see NY Const, art III, § 1; art XVI, § 1; Greater Poughkeepsie Lib. Dist. v Town of Poughkeepsie, 81 NY2d 574, 579-580 [1993]). Consistent with the NY Constitution, the taxes that petitioner was required to pay were enacted by the Legislature. The Department of Economic Development (hereinafter DED) did not impose any tax; it merely determined whether businesses were entitled to a credit against legislatively-imposed taxes (see James Sq. Assoc. LP v Mullen, 91 AD3d 164, 172-173 [2011]). In doing so, DED was implementing a legislative mandate, which is constitutionally permissible (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 864-865 [2003]; Matter of Carpenter Tech. Corp. v Commissioner of Taxation & Fin., 295 AD2d 830, 834 [2002], lv denied 99 NY2d 501 [2002]; Rex Paving Corp. v White, 139 AD2d 176, 184 [1988]). Thus, the court properly declared that the Board’s determination did not violate the NY Constitution.
Petitioner should have been granted leave to amend its petition/complaint to include a cause of action seeking a declaration that any revocation of petitioner’s status as an empire zone business enterprise may not be applied retroactively to January 2008. “Leave to amend a pleading should be freely
Supreme Court properly declared that respondents may not be estopped from revoking petitioner’s certification as an empire zone business enterprise. Because “tax legislation is not a governmental promise, [taxpayers have] no vested or actionable right ... to the benefit of a tax statute or regulation” (Matter of Varrington Corp. v City of N. Y. Dept. of Fin., 85 NY2d 28, 33 [1995]). A claim of estoppel may only be asserted against a government agency in the rarest of situations and may not be invoked to prevent an agency from discharging its statutory duties (see Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]; Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi], ’77 AD3d 1146, 1148 [2010]). After the Legislature amended the Empire Zones Act, the Board discharged its statutory duty to review appeals of the DED Commissioner’s decisions to decertify empire zone business enterprises (see General Municipal Law § 959 [w]). Under these circumstances, where petitioner did not have a vested right to continue receiving tax credits and the Board was fulfilling its duty under the law, the court properly held that estoppel may not be invoked.2
Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as (1) dismissed petitioner’s fourth and sixth causes of action seeking to annul the determination of respondent Empire Zone Designation Board revoking petitioner’s certification as an empire zone business enterprise and (2) denied petitioner’s motion to amend its petition/complaint; motion granted and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.
1.
Petitioner’s appeal from the final judgment brings up for review any nonfinal orders that necessarily affect that judgment (see CPLR 5501 [a] [1]).
2.
To the extent that petitioner seeks to estop respondents from applying its decertification retroactively to January 2008, that argument may be raised upon remittal in connection with the newly-added cause of action.