HON. = PREME COUR] SUSTICE OF TH SUPREME COURT OF THE STATE OF NEW YORK /y COUNTY OF RICHMOND 17] log VINCENT IGNIZIO, individually, and as a Member of the New York City Council, Index No, 080355/08 Verifying Petitioner, and, TAS Part JAMES ODDO, individually, and as a Member of the New York City Council, VINCENT GENTILE, ; Justice individually, and as a Member of the New York City Council, LEWIS FIDLER, individually, and as AMENDED VERIFIED a Member of the New York City Council, TONY PETITION AVELLA, individually, and as a Member of the New York City Council, and LOUIS TOBACCO, individually, and as a Member of the New York State Assembly, EIVED CIVIL TERM CLisxs orricg Petitioners, For Judgment Pursuant to CPLR Article 78 . : DEC 02 2008 ~ against - ' + RICHMOND counry MARTHA STARK, as Commissioner of Finance of * ‘SUPREME Cou the City of New York, a Respondent, NATURE OF THE PROCEEDING 1, This Article 78 petition seeks to compel the New York City Commissioner of Finance to issue property tax rebate checks in the amount of $400 to homeowners who are deemed eligible by law. At issue here is Mayor Michael R. Bloomberg's (the “Mayor’s”) illegal, unilateral decision refusal to perform his purely ministerial duty to issue and mail over $250 million in property tax rebates to homeowners as directed by city law and the City Charter: 2. As desoribed more fully below, various legal provisions require the City of New York (the “City”) to issue and mail these rebate checks. But the Commissioner of Finance("Respondent"), at the Mayor's direction, has chosen to simply ignore the law in an effort to extract $256 million from New York’s homeowners as a means to narrow the budget gap. Worse, the Mayor has threatened to spend these funds before the end of this fiscal year, making repayment impossible. 3. What makes the Mayor's actions here even more inexplicable is the fact that he has been told by his own budget director that his actions are contrary to law. But the Mayor has made his intentions clear: to “generate $256 million in additional revenue,” which the government will spend elsewhere, by “not issuing the $400 property tax rebate.” When faced with evidence that the law requires him to seek approval from the City Council, the Mayor responded by saying, “we issue the checks,” indicating his apparent belief that he can simply evade the law merely because he controls the purse strings. He has also made it clear that nothing short of a court order will get him to change his mind. 4, The Petitioners have demanded that the Mayor and City Respondent perform their duty. In response, Respondents have refused the demand, and threatened to make future compliance with the law impossible. Thus, immediate judicial intervention is needed. This Court should now (a) declare that the City Respondent's lawful duty to issue and mail the property tax rebate checks is logistical and ministerial in nature, and is not subject to his discretion, and (b) order the City Respondent to issue and mail the property tax rebate checks forthwith, before itis too late. PARTIES 5. Petitioner Vincent M. Ignizio is a resident of Richmond County and is entitled to the property tax rebate under the relevant statutes, Petitioner Ignizio is also a Member of the New York City Council (the “Council”), representing the 51st councilmanic district.6. Petitioner James Oddo is a resident of Richmond County and is entitled to the property tax rebate under the relevant statutes. Petitioner Oddo is also a Member of the Council, representing the 50th councilmanic district. 7. Petitioner Vincent Gentile is a resident of Kings County and is entitled to the property tax rebate under the relevant statutes. Petitioner Gentile is also a Member of the Council, representing the 43rd councilmanie district. 8. Petitioner Lewis Fidler is a resident of Kings County and is entitled to the property tax rebate under the relevant statutes. Petitioner Fidler is also a Member of the Council, representing the 46th councilmanie district. 9. Petitioner Tony Avella is a resident of Queens County and is entitled to the property tax rebate under the relevant statutes. Petitioner Avella is also a Member of the Council, representing the 19th councilmanic district. 10, Petitioner Louis Tobacco is a resident of Richmond County and is entitled to the property fax rebate under the relevant statutes. Petitioner Tobacco is also a Member of the New York State Assembly, representing the 62nd Assembly District. 11. Respondent Martha Stark is the City’s Finance Commi: ier, and is being sued here in her official capacity. RELEVANT LEGAL AUTHORITIES 12. Under CPLR § 7803, a Court may determine "(1) whether the body or officer failed to perform a duty enjoined upon it by law; ... (2) whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or (3) whether a determination was made in violation of lawful procedure . . .