Davis v. State Tax Commission , 155 A.D.2d 743 ( 1989 )

— Casey, J.

Appeal from a judgment of the Supreme Court (Williams, J.), entered January 8, 1988 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for lack of jurisdiction.

An assessment of $282,942.46 in taxes, interest and penalties was imposed against petitioners as the result of their involvement in Melons Disco & Records, Inc., a New York City discotheque, which operated during 1980 and 1981. After a hearing, respondent modified the notices of determination and demand by (1) changing the period for which the sales and use taxes were assessed to correspond to the time when the discotheque was open for business, and (2) reducing the finding as to the maximum capacity of the discotheque to compute revenue from 600 to 590. Otherwise, the determination against petitioners was sustained.

Thereupon, petitioners commenced this CPLR article 78 proceeding to review the determination. At that time, petitioners had neither paid the tax, nor had they filed an undertaking in the amount of the tax as required by Tax Law § 1138 (a) (4). Respondent moved to dismiss the proceeding for petitioners’ failure to comply with the statute. Supreme Court granted respondent’s motion by virtue of the mandates of Matter of Penney Co. v New York State Tax Commn. (86 AD2d 705, lv denied 56 NY2d 507) and Tax Law § 1138 (a) (4).

On this appeal, petitioners urge that Tax Law § 1138 (a) (4) is unconstitutional. This court has already held to the contrary and has upheld the constitutionality of the requirement of Tax Law § 1138 (a) (4) (Matter of R & G Outfitters v Bouchard, 101 AD2d 642). Accordingly, Supreme Court properly dismissed the petition, and we affirm its judgment.

Judgment affirmed, without costs. Mahoney, P. J., Casey, Weiss, Mikoll and Harvey, JJ., concur.