
    Philip Fiero, Individually and as Administrator of the Estate of Vincie Fiero, Also Known as Vincenza Fiero, Deceased, Plaintiff, v. New York State Tax Commission, Defendant.
    Supreme Court, Special Term, New York County,
    June 26, 1961.
    
      Tenser $ Golden for plaintiff.
    
      Louis J. Lefhowits, Attorney-General, for defendant.
   Henry Epstein, J.

Defendant moves for summary judgment dismissing the complaint and the plaintiff cross-moves for summary judgment. The action was brought for a declaratory judgment that certain additional tax assessments were invalid and void and for incidental relief. The contention that the commission was without sufficient information to justify its opinion that the returns were incorrect is itself wholly incorrect and unrealistic. The taxpayer’s returns, failures to return, and inadequate and contradictory audit information caused the difficulty and in the light of the information at hand warranted the action taken under section 373 of the Tax Law. The taxpayer’s failure in the circumstances to take advantage of the provisions of sections 374 and 375 of the Tax Law to remedy what he believed to be improper assessments and his resort to action for declaratory judgment is an election which was not warranted. Plaintiff urges that the question to be determined is whether the commission had before it sufficient information justifying an opinion that the land in question was farm land used in the taxpayer’s business, or, conversely, if in making such a determination the commission acted in an arbitrary and capricious manner, and in the latter event the commission acted without the power granted to it under section 373 of the Tax Law. On the contrary, the commission could act with power under section 373 and yet act arbitrarily, in which event the error could be corrected by review under sections 374 and 375. Power existing, action for declaratory judgment is not the vehicle to review an alleged arbitrary exercise thereof. The defendant’s motion is granted and plaintiff’s motion is denied.  