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DUFFY v. WETZLER

174 A.D.2d 253 (1992)

Eugene H. Duffy et al., on Behalf of Themselves and All Others Similarly Situated, Respondents-Appellants, and Albert Engel et al., Proposed Intervenors-Appellants, v. James W. Wetzler, Individually and as Commissioner of Taxation and Finance of the State of New York, et al., Appellants-Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 15, 1992

Attorney(s) appearing for the Case

Robert Abrams, Attorney-General (Peter H. Schiff and Denise A. Hartman of counsel), for James W. Wetzler and others, appellants-respondents.

O. Peter Sherwood, Corporation Counsel (Edward F.X. Hart, Stanley Buchsbaum, Frances J. Henn and Edith I. Spivack of counsel), for Anthony Shorris and others, appellants-respondents.

Anderson Kill Olick & Oshinsky, P. C. (Rudolph W. Giuliani, Mark L. Weyman and Roberto Velez of counsel), Phelan & Costello, P. C. (John J. Phelan III, Robert J. Costello and Michael F. Fitzgerald of counsel), and O'Neil, Cannon & Hollman, S. C. (Eugene O. Duffy and Gregory W. Lyons of counsel), for respondents-appellants and proposed plaintiffs-intervenors-appellants. (One brief filed.)

KUNZEMAN, MILLER and O'BRIEN, JJ., concur.

THOMPSON, J. P.

The main issue arising at bar is whether the decision in the instant case should be applied retroactively, or prospectively, pursuant to the recent decision of the United States Supreme Court in James Beam Distilling Co. v Georgia (501 US ___, 111 S.Ct. 2439 [hereinafter Beam]). We conclude that an analysis of Beam requires prospective application on the facts. For the reasons...

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