KESSLER v. HEVESI (2007)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about July 7, 2006, which granted defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, and denied plaintiffs' cross motion for summary judgment, unanimously modified, on the law, to declare County Law § 309 constitutional, and otherwise affirmed, without costs.

 We reject plaintiffs' argument that the monthly surcharge on wireless telephones for, inter alia, enhanced 911 services is a taking because it is a user fee rather than a general tax, and because the State has not used the revenue effectively to implement enhanced 911 services.  County Law § 309 requires that users pay a charge to the State for public safety services that are provided for the common good (see Transportation Unlimited Car Serv., Inc. v. New York City Taxi & Limousine Commn., 11 A.D.3d 384, 784 N.Y.S.2d 41 [2004];  see also Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225, 106 S.Ct. 1018, 89 L.Ed.2d 166 [1986] ).   User fees involve the government selling a service to an individual, such as highway tolls or court filing fees, rather than exercising police powers that are generally applicable to the entire community (see New York Tel. Co. v. City of Amsterdam, 200 A.D.2d 315, 318, 613 N.Y.S.2d 993 [1994] ).   Here, the surcharge assessed under County Law § 309 pays for services received by, and for the benefit of, the general public.   The benefits flow to the general public because everyone-not just wireless telephone users-benefits from the enhancements to 911 service.

The relevant analysis under the Takings Clause is not whether the use of these revenues is effective or not, but whether the distribution of the surcharge unfairly concentrates public burdens on the shoulders of a few (Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542, 125 S.Ct. 2074, 161 L.Ed.2d 876 [2005] ).   Here, the extension to wireless telephone users of a surcharge that was initially placed on land-line telephone users to support public safety programs can hardly be said to impose such an unfair burden.

We have considered plaintiffs' remaining arguments and find them unavailing.