SENECA NATION OF INDIANS v. STATE OF NEW YORK CA 11-01193.
89 A.D.3d 1536 (2011)
933 N.Y.S.2d 500
2011 NY Slip Op 8425
SENECA NATION OF INDIANS, Appellant, v. STATE OF NEW YORK et al., Respondents.
Appellate Division of the Supreme Court of New York, Fourth Department.
Decided November 18, 2011.
Present—CENTRA, J.P., FAHEY, PERADOTTO, GREEN and GORSKI, JJ.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law by granting judgment in favor of defendants as follows:
"It is adjudged and declared that 20 NYCRR 74.6 is valid and enforceable, and that defendant New York State Department of Taxation and Finance substantially complied with State Administrative Procedure Act §§ 201-a, 202-a and 202-b in promulgating that rule" and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, individual declarations that 20 NYCRR 74.6 (hereafter, the rule), concerning taxes imposed on cigarettes on qualified Indian reservations, is null, void and unenforceable based on the failure of defendant New York State Department of Taxation and Finance (Department) to comply with sections 201-a, 202-a and 202-b of the State Administrative Procedure Act. The Department promulgated the rule in accordance with the statutory mandate governing the sale of tax-exempt cigarettes on qualified reservations to members of an Indian nation or tribe, as well as the collection of the excise tax on cigarette sales to non-members of the nation or tribe (see generally Tax Law §§ 471, 471-e). Plaintiff appeals from a judgment that, inter alia, denied its motion for summary judgment seeking declaratory and injunctive relief and granted defendants' cross motion for summary judgment. We agree with plaintiff that, because "[i]nterpretation of the State Administrative Procedure Act is not dependent on an understanding of technical data or underlying operational practices . . ., the courts [should] use their own competence to decide issues of law raised" (Matter of Industrial Liaison Comm. of Niagara Falls Area Chamber of Commerce v Williams, 72 N.Y.2d 137, 144 ). Nevertheless, we agree with Supreme Court that our standard of review is whether there has been substantial compliance with the State Administrative Procedure Act in promulgating the rule (see § 202 ; Industrial Liaison Comm. of Niagara Falls Area Chamber of Commerce, 72 NY2d at 144), and we conclude that there was substantial compliance.
Finally, although the court properly determined the merits of the issues raised in the motion and cross motion before it, the court failed to make the requisite declarations in favor of defendants (see Hirsch v Lindor Realty Corp., 63 N.Y.2d 878, 881 ; Schlossin v Town of Marilla, 48 A.D.3d 1118, 1119 ). We therefore modify the judgment accordingly.
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