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

Eugene H. DUFFY, et al., appellants, v. James W. WETZLER, et al., respondents.

Decided: April 26, 1999

CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN and DANIEL F. LUCIANO, JJ. Anderson Kill & Olick, P.C., New York, N.Y. (Mark L. Weyman of counsel), Phelan & Costello, P.C., New York, N.Y. (John J. Phelan and Robert J. Costello of counsel), and O'Neil Cannon & Hollman, S.C., Milwaukee, WI. (Eugene O. Duffy of counsel), for appellants (one brief filed). Michael D. Hess, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Frances J. Henn of counsel), for City respondents. Eliot L. Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek and Marion R. Buchbinder of counsel), for State respondents.

In a consolidated action, inter alia, for injunctive and monetary relief, and challenging the constitutionality of Tax Law § 612(c) (former [3] ) and Administrative Code of the City of New York § 11-1712(c) (former [3] ), the plaintiffs appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated January 14, 1998, which granted the defendants' motions to dismiss the complaint and denied their cross motion, inter alia, for leave to amend the complaint and, in effect, to reargue their prior motion for class certification.

ORDERED that the appeal from so much of the order as denied that branch of the plaintiffs' motion which was for reargument is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that the defendants are awarded one bill of costs.

The facts and procedural history of this case dating from 1989 through 1995 are set forth in Duffy v. Wetzler, 148 Misc.2d 459, 555 N.Y.S.2d 543, affd. as mod. 174 A.D.2d 253, 579 N.Y.S.2d 684, lv. denied 80 N.Y.2d 890, 587 N.Y.S.2d 900, 600 N.E.2d 627, cert. denied 513 U.S. 1103, 115 S.Ct. 779, 130 L.Ed.2d 673, and will not be repeated here.

While appeals in Duffy v. Wetzler, 148 Misc.2d 459, 555 N.Y.S.2d 543, supra (hereinafter Duffy) were pending, the attorneys for the Duffy plaintiffs commenced a nearly identical action in the Supreme Court, New York County, known as Alderman v. Wetzler (hereinafter Alderman).   Pursuant to a so-ordered stipulation dated June 28, 1995, Duffy and Alderman were consolidated for all purposes in the Supreme Court, Queens County.   In March 1997 the defendants moved pursuant to CPLR 3211(a)(5) to dismiss the consolidated action on the grounds of res judicata, collateral estoppel, and payment.   The plaintiffs cross-moved, inter alia, for leave to amend the complaint and, in effect, for leave to reargue a prior motion for class certification.

 The Supreme Court properly denied that branch of the plaintiffs' cross motion which was for leave to amend the complaint by adding several factual allegations and two new causes of action.   Although leave to amend a pleading should be freely given (see, CPLR 3025[b] ), leave is properly denied where, as here, the proposed amendments are devoid of merit and are legally insufficient (see, Matter of Consolidated Edison Co. of N.Y. [Neptune Assocs.], 143 A.D.2d 1012, 1014, 533 N.Y.S.2d 591;  Norman v. Ferrara, 107 A.D.2d 739, 740, 484 N.Y.S.2d 600), and where, in addition, there has been an extensive and unexplained delay in making the motion (see, Beuschel v. Malm, 114 A.D.2d 569, 494 N.Y.S.2d 185;  Smith v. Sarkisian, 63 A.D.2d 780, 781, 404 N.Y.S.2d 911, affd. 47 N.Y.2d 878, 419 N.Y.S.2d 74, 392 N.E.2d 1257).

 That branch of the plaintiffs' motion which was denominated as one for leave to renew or reargue a prior motion for class certification was not based on new facts which were unavailable at the time of the original motion, and therefore the motion was actually one to reargue, the denial of which is not appealable (see, Marine Midland Bank v. Freedom Rd. Realty Assocs., 203 A.D.2d 538, 539, 611 N.Y.S.2d 34;  Matter of Kadish v. Colombo, 121 A.D.2d 722, 504 N.Y.S.2d 149).

 The Supreme Court properly dismissed the complaint on the ground of payment.   The plaintiffs' conclusory allegations that the defendants failed to pay full refunds plus interest to all Federal retirees who filed timely refund claims are unsupported by the record.   To the extent that the plaintiffs continue to seek refunds for late or unfiled claims, it should be noted that such a cause of action is personal to the taxpayer and that only those who filed an appropriate protest may obtain a tax refund (see, Gandolfi v. City of Yonkers, 101 A.D.2d 188, 198-199, 475 N.Y.S.2d 429, affd. 62 N.Y.2d 995, 479 N.Y.S.2d 517, 468 N.E.2d 699).   The commencement of a class action, purportedly on behalf of all similarly-situated taxpayers, is not a sufficient indication of protest by each proposed member of the class (see, Conklin v. Town of Southampton, 141 A.D.2d 596, 598-599, 529 N.Y.S.2d 517).

The plaintiffs' remaining contentions are without merit.


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