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Matter of Edens v Megna 2009 NY Slip Op 30117(U) January 22, 2009 Supreme Court, Albany County Docket Number: 3621-08 Judge: Joseph C. Teresi Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT In the Matter of the Application of MARY S. EDENS, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -againstROBERT MEGNA, New York State Commissioner of Taxation and Finance, and NEW YORK STATE TAXATION AND FINANCE, Respondents.

COUNTY OF ALBANY

DECISION and ORDER INDEX NO. 3621-08 RJI NO. 01-08-ST8820

Supreme Court Albany County All Purpose Term, January 13,2009 Assigned to Justice Joseph C. Teresi APPEARANCES: The Law Offices of Donald G. Koch Donald G. Koch, Esq. Attorneys for Petitioner 26 Broadway, 21 5t Floor New York, New York 10004 Andrew M. Cuomo, Esq. Attorney General of the State of New York Attorneys for the Respondents Kelly L. Munkwitz, Esq. AAG The Capitol Albany, New York 12224 TERESI, J.: As of December 31, 2007, Respondents had issued two tax warrants against petitioner's husband for a total combined amount due of$154,902.90. On such date, respondents forwarded

a tax compliance levy to Smith Barney, Inc. seeking to recover petitioner's husband's taxes due,

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from any property in their possession in which petitioner's husband had an interest. According to petitioner, she and her husband owned a Smith Barney, Inc. investment account as "joint tenants with a right of survivorship". In accord with the respondents' tax compliance levy, Smith

Barney, Inc. liquidated petitioner's jointly held account and turned $66,136.69 over to respondents. Petitioner brings this Article 78 proceeding claiming "[r]espondent's final determination

to levy petitioner's [Smith Barney, Inc.] account was arbitrary, capricious, illegal and otherwise improper". Respondents have now answered, oppose the petition and set forth three objections in point of law. Respondents failed to set forth the necessary evidentiary support for their objections in point of law. However, because petitioner failed to demonstrate that the respondents' actions were arbitrary and capricious in issuing the levy, the petition is dismissed. Respondents' actions will not be disturbed, unless petitioner demonstrates that such actions were "arbitrary, capricious, or irrational". (Matter of Voelker v. State of NY Coromr. of Taxataion & Fin., 50 AD3d 1187 [3d Dept. 2008]). It is axiomatic that this Court "may not substitute [its] discretion for that of the agency". (Matter ofF&W Old~mobile v. State of NY Commn. of Taxation & Fin., 106 AD2d 792 [3d Dept. 1984]). Respondents are directed by statute (Tax Law

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