Curry v. New York State Department of Taxation & Finance

Order, Supreme Court, New York County (Stuart Cohen, J., upon decision of Francis Pécora, J.), entered April 28, 1992, which granted defendants’ motion to dismiss this declaratory judgment action for failure to exhaust administrative remedies, and denied plaintiffs’ cross motion to stay further administrative proceedings pending final determination of the action, unanimously affirmed, without costs.

The action was properly dismissed since defendants’ Notice of Proposed Personal Income Tax Changes, which merely advised plaintiffs that a Notice of Deficiency would be issued for the tax years in question if they did not request a conference or submit additional information, was not a final administrative action. "[A] controversy cannot be ripe if the claimed harm may be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.” (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 520, cert denied 479 US 985.) Accordingly, the IAS Court correctly granted defendants’ motion to dismiss the declaratory judgment action for failure of the plaintiffs to exhaust their administrative remedies, and denied plaintiffs’ cross motion for a stay. Concur—Rosenberger, J. P., Wallach, Ross, Kassal and Nardelli, JJ.