COUNTY OF MONROE v. Town of Chili, Town of Clarkson, Town of Gates, Town of Greece, Town of Hamlin, Town of Ogden, Town of Parma, Town of Penfield, Town of Perinton, Town of Pittsford, Town of Sweden, Town of Webster, Town of Wheatland, Defendants-Respondents, et al., Defendants. (2007)

Supreme Court, Appellate Division, Fourth Department, New York.

COUNTY OF MONROE, Plaintiff-Respondent, v. CITY OF ROCHESTER, Town of Brighton, Town of Irondequoit, Town of Mendon, Town of Rush, Avon Central School District, Brighton Central School District, Brockport Central School District, Byron-Bergen Central School District, Caledonia-Mumford Central School District, Churchville-Chili Central School District, East Irondequoit Central School District, East Rochester Union Free School District, Fairport Central School District, Gates-Chili Central School District, Greece Central School District, Hilton Central School District, Holley Central School District, Honeoye Falls-Lima Central School District, Kendall Central School District, Penfield Central School District, Pittsford Central School District, Rush-Henrietta Central School District, Spencerport Central School District, Victor Central School District, Wayne Central School District, Webster Central School District, West Irondequoit Central School District, Wheatland-Chili Central School District, Town of Henrietta, Defendants-Appellants, Town of Chili, Town of Clarkson, Town of Gates, Town of Greece, Town of Hamlin, Town of Ogden, Town of Parma, Town of Penfield, Town of Perinton, Town of Pittsford, Town of Sweden, Town of Webster, Town of Wheatland, Defendants-Respondents, et al., Defendants.

Decided: April 20, 2007

PRESENT: SCUDDER, P.J., HURLBUTT, GREEN, AND PINE, JJ.

Thomas S. Richards, Corporation Counsel, Rochester, for Defendant-Appellant City of Rochester, Chamberlain D'Amanda Oppenheimer & Greenfield LLP, for Defendant-Appellant Town of Mendon, Daniel J. Mastrella, for Defendant-Appellant Town of Henrietta, William W. Moehle, for Defendant-Appellant Town of Brighton, and Boylan, Brown, Code, Vigdor & Wilson LLP, for Defendants-Appellants Town of Irondequoit and Town of Rush. Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., East Syracuse (Joseph G. Shields of Counsel), for Defendants-Appellants Avon Central School District, Brighton Central School District, Brockport Central School District, Byron-Bergen Central School District, Caledonia-Mumford Central School District, Churchville-Chili Central School District, East Irondequoit Central School District, East Rochester Union Free School District, Fairport Central School District, Gates-Chili Central School District, Greece Central School District, Hilton Central School District, Holley Central School District, Honeoye Falls-Lima Central School District, Kendall Central School District, Penfield Central School District, Pittsford Central School District, Rush-Henrietta Central School District, Spencerport Central School District, Victor Central School District, Wayne Central School District, Webster Central School District, West Irondequoit Central School District, and Wheatland-Chili Central School District. Daniel M. DeLaus, County Attorney, Rochester, for Plaintiff-Respondent.

The appealing municipalities and school districts appeal from a judgment declaring, inter alia, that, in the event that plaintiff elects the sales tax intercept option codified in Tax Law § 1261(f), the net collections distributed to defendants pursuant to Tax Law former § 1262-g would be reduced by the amount of sales tax revenue deducted by the State to cover plaintiff's Medicaid contribution. Here, however, the sales tax intercept option will not be effective unless and until plaintiff elects to adopt it by resolution (see L. 2005, ch. 58, part C, § 2[b][i] ). We therefore do not address the merits of the complaint because it seeks an advisory opinion, and we conclude that the judgment must be reversed and the complaint dismissed. “ The courts of New York do not issue advisory opinions for the fundamental reason that in this State ‘[t]he giving of such opinions is not the exercise of the judicial function’ ” (Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546; see Herzog Bros. Trucking v. State Tax Commn., 72 N.Y.2d 720, 725, 536 N.Y.S.2d 416, 533 N.E.2d 255; New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155; Hollows at Loch Lea Assn., Inc. v. Town of Clarence, 8 A.D.3d 994, 995, 778 N.Y.S.2d 587). The fact that the parties agree that we should address the merits of the appeal is of no moment, inasmuch as the parties cannot “by agreement confer subject matter jurisdiction upon [a] court where there is none” (Cuomo, 71 N.Y.2d at 351, 525 N.Y.S.2d 828, 520 N.E.2d 546; see generally Matter of Ballard v. HSBC Bank USA, 6 N.Y.3d 658, 663, 815 N.Y.S.2d 915, 848 N.E.2d 1292).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the complaint is dismissed.

MEMORANDUM:

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