The State Court of
Appeals in Albany.

[A slightly different version of this story already appeared in the New York Law Journal]

ALBANY-Lawyers for the Metropolitan Transportation Authority yesterday notified the state Court of Appeals of their intention to appeal a ruling last week striking down a payroll tax on business located within the counties where the MTA operates. The MTA notified the state’s highest court of its intent to appeal Nassau County Supreme Court Justice R. Bruce Cozzens Jr.’s Aug. 22 ruling in Mangano v. Silver, 14444/2010, which found the tax unconstitutional. Attorney General Eric Schneiderman also informed the court and opposing lawyers yesterday of his intent to appeal the ruling.

Cozzens decided that the tax, totaling 34 cents for every $100 paid in wages by employers in the 12-county MTA region, was improperly passed in 2009 without a “home rule” message from municipalities to the state Legislature, as is required by the state Constitution. Such a message is used when localities seek to invoke the authority of the Legislature and governor to pass measures impacting local residents. The MTA says the tax is needed to help balance its budget.

The plaintiffs, including Nassau County Executive Edward Mangano, Nassau and Suffolk counties and several Long Island communities, say the tax unfairly impacts Long Island companies and residents and was improperly created. The defendants, including Albany legislative leaders and the governor, are seeking an unusual direct appeal by right from the trial court to the high court, a move that can be used if a constitutional question is the only legal issue in the litigation.