The following papers read on this motion: Notice of Motion X Affirmation in Support X Affidavit in Support X Memorandum of Law in Support X Affirmation in Opposition X Memorandum of Law in Opposition X Reply Affirmation X Upon the foregoing papers and the hearing held before this Court on June 11, 2019, the motion by the defendant, Hicksville Fire District (hereafter as “District”) to dismiss the complaint as against the District only pursuant to CPLR §3211(a)(7) for failure to state a cause of action is granted to the following extent. The plaintiff’s complaint alleges seven causes of action primarily against the County defendants in which, among other things, they dispute the constitutionality of the “DAF” (disputed assessment fund) law, specifically Section 6-41.0 of the Nassau County Administrative Code. The only cause of action that relates to the District is the complaint’s sixth cause of action which alleges unjust enrichment in that the various taxing jurisdictions in Nassau County, including the District, would receive windfall tax revenue if the contemplated distribution of unused DAF amounts were distributed to them. Defendant District contends that plaintiff’s complaint fails to state a cause of action against the District as to its first through fifth and seventh causes of action as they are between the plaintiff and the County defendants; and that plaintiff’s sixth cause of action is not ripe for adjudication. District submits the affidavit of Robert Lang, chairman of the Board of Commissioners of the defendant District. Chairman Lang attests that the District has never asked nor received any monies related to the DAF legislation; and that the District is unaware of any authority it has to demand unjustified revenue from any source in excess of its duly approved final budget. At the hearing held before this Court on June 11, 2019, defendant District was heard on this motion and plaintiff did not oppose the dismissal of the action as against the District. Accordingly, plaintiff’s complaint is hereby dismissed as to defendant Hicksville Fire District only. Movant shall serve a copy of this Order upon all parties and upon the Nassau County Clerk within ten (10) days of the date of this Order. The Nassau County clerk is directed to remove Hicksville Fire District from the caption of this action. This Constitutes the Decision and Order of this Court. Any request for relief not expressly granted is denied. So Ordered. Upon the foregoing papers and the oral arguments held before the undersigned, the motion by defendants, Laura Curran, in her official capacity as Nassau County Executive, David F. Moog, in his official capacity as Assessor of the County of Nassau, Beaumont Jefferson, in his official capacity as Nassau County Treasurer, Nassau County department of Assessment, Nassau County Legislature and the County of Nassau (hereafter as “the County and/or the County defendants”), which seeks an Order pursuant to CPLR §3211 (a)(3), (a)(5) and (a)(7) dismissing plaintiff’s complaint is determined as follows. Initially, this Court perceives the issues to be determined herein of great importance, not only to the parties herein, but to all Class IV property owners within Nassau County. As such, this Court has analyzed all the initial moving, opposing and reply papers; heard oral arguments; and permitted the parties to submit post oral argument submissions. After the majority of the oral arguments were completed, on August 26, 2019, this Court had given sufficient notice to the parties that it may exercise its discretion to convert this CPLR §3211(a) motion into one for summary judgment pursuant to CPLR §3211(c). However, upon review of the oral argument transcripts herein, and the post-oral argument submissions, the Court declines to exercise its discretion to convert this motion into one for summary judgment. Accordingly, at this time the Court is restrained from making any dispositive determinations on the merits of this proceeding. The within action, commenced by plaintiff, DELCO, seeks declaratory, as well as monetary relief, and a permanent injunction. DELCO seeks judgment as follows: 1. A declaration that the provisions of Section 6-41.0 of the Nassau County Administrative Code that allow the Assessor and the Class IV taxpayers to raise the overall tax levies and tax rates for Class IV property are unconstitutional, illegal, invalid, and void; 2. A refund to DELCO of all DAF (disputed assessment fund) taxes paid by the plaintiff for the 2016/17 and 2017/18 tax years; 3. A preliminary and permanent injunction enjoining and restraining the defendants, their agents, assistants, employees, attorneys and all persons acting with them or at their direction from distributing or accepting any proceeds or monies generated by resolution of tax certiorari litigation from the DAF fund; 4. Costs, attorney’s fees and disbursements of this application. The plaintiff alleges the following causes of action: (1) that the DAF law is an unconstitutional surrender of local taxing power to an unelected official and violates Article XVI, Section 1 of the New York State Constitution; (2) that the delegation of the ability to raise the tax levy and tax rates to the individual unelected Class IV Taxpayers of Nassau County that are not subject to legislative of voter oversight is an unconstitutional delegation of the local taxing power to unelected private parties pursuant to Article XVI, Section 1 of the New York State Constitution; (3) that the DAF law as written is constitutionally deficient pursuant to Article XVI, Section 1 of the New York State Constitution as it contains no provision for the review of the amount of the DAF “tax”; (4) that the DAF law violates the equal protection clause of the New York State Constitution; (5) that the County has violated RPTL Art. 18 in its application of the DAF law; (6) that the DAF law as written results in an unjust enrichment to various taxing authorities in Nassau County at plaintiff’s expense; and (7) that the DAF law is in contravention of the County Guaranty. The County defendants move to dismiss plaintiff’s complaint pursuant to CPLR §§3211(a)(3), (a)(5) and (a)(7) contending that plaintiff’s claims are time barred; that plaintiff’s failed to comply with County Law §52 and Nassau County Administrative Code §11-4.1; that the DAF law is not unconstitutional; that plaintiff’s claim for unjust enrichment is not ripe; and that plaintiff’s claim lacks standing to sue based upon the County Guaranty. Plaintiff is the owner of certain real property located at 265 South Broadway, Hicksville, New York 11801. The property is designated as Section 46, Block 276-01, Lots 9, 15-16, 553, 565, 572-573 on the Nassau County Tax Map. Plaintiff’s property is located in the County of Nassau, Town of Oyster Bay, within the Hicksville School District and is responsible for and pays taxes to the aforementioned entities. As Nassau County is a “special assessing unit” (defined as “an assessing unit with a population of one million or more”) pursuant to Real Property Tax Law (hereafter as RPTL) §1801, it is authorized to and performs the real property assessment function, sets the tax rates and maintains the tax rolls for property within the County. (see Nassau County Charter §§601-607; Nassau County Administrative Code Chapter VI). Further, in the event that there is an erroneous assessment where the amount of tax or assessment due is less than the amount of tax or assessment for benefit as shown on the roll, Nassau County is obligated to make other taxing entities that relied upon the County’s Assessment Roll whole pursuant to the Nassau County Administrative Code (hereafter as “NCAC”) §6-26(B)(3)(C) which provides that “Notwithstanding any provisions of this chapter, or any other general or special law to the contrary, any deficiency existing or hereafter arising from a decrease in an assessment or tax under subdivisions one, four and seven of section 6-24.0, or sections 6-12.0 or 5-72.0 of the code or by reason of exemption or reductions of assessments shall be a county charge”. This obligation by the County to pay tax refunds for school districts and other municipalities which used the County assessment, is commonly called the “County Guaranty”. (Baldwin Union free Sch. Dist. v. County of Nassau 22 N.Y.3d 606 [2014]). Finally, RPTL §1802 provides for the classification of real property in a “special assessing unit” and separates the property into the following four classes: Class I, being all one, two and three family residential real property and certain condominiums; Class II, being all other residential real property which is not designated as class one, except hotels and motels and other similar commercial real property; Class III, being utility real property; and Class IV, all other real property which is not designated as Class I, II or III which includes primarily commercial property and vacant land. Pursuant to RPTL §1803 and §1803-a, the special assessing unit is permitted to set different tax rates for each of the classes. It is undisputed that DELCO’s property is a commercial property designated as Class IV property. Article 7 of the RPTL provides for judicial review of a tax assessment of real property (RPTL §700, et seq.) It is a vehicle for which a real property owner can challenge its property assessment. Because delinquent taxes are enforced by a lien upon the property, the taxpayer must pay the full tax which has been assessed, regardless of the commencement of an Article 7 proceeding. (see RPTL §902). If the taxpayer is successful in obtaining a reduction in assessment, the County is required to pay the taxpayer a refund and the refund is usually paid in a subsequent tax year. Based upon the submissions before this Court, including the transcript of the hearing before the Nassau County Legislature prior to the passage of the resolution to request that the New York State Legislature enact the DAF law, it appears that approximately 90 percent of commercial property owners challenge their real property tax assessments each year. Further the New York State Legislative Memorandum prepared in connection with the passage of the DAF law (annexed to movant’s papers as Exhibit “C”) notes that each year, commercial property owners in Nassau County generate $60-$80 million in tax certiorari refunds and the DAF fund aims to maintain the costs of these refunds on commercial property owners, protect homeowners by ending their subsidy of commercial property owners’ refunds and end borrowing by the County to pay property tax refunds. (See, Exhibit C) In 2014, Governor Cuomo signed the ‘Disputed Assessment Fund’ law which created a new Section 6-41.0 of the Nassau County Administrative Code applicable to all Class IV properties in Nassau County. The DAF law, which took effect for the 2016/17 tax year, provides as follows: “§6-41.0 Levy and Extension of Taxes; Class Four Real Property. Notwithstanding any provision of law to the contrary, in a special assessing unit which is not a city, all real property taxes on real property classified as class four under section eighteen hundred two of the real property tax law on the final assessment roll shall be levied and extended in the following manner: a. Such taxes shall be levied and extended on each property’s assessment on the final assessment roll except as provided in this section where a timely proceeding under title one of article seven of the real property tax law has been initiated the assessed value upon which taxes are levied and extended shall be the assessment claimed on the petition initiating such timely proceeding; provided however, that where such timely petition claims a reduction greater than ten percent of a property’s assessment on the final assessment roll taxes shall be levied and extended on the tax roll equal to ninety percent of such property’s assessment on the final assessment roll unless the assessor in his or her discretion based on reasonable evidence determines that it is in the best interest of the county to levy and extend taxes based on a claimed reduction greater than ten percent such that taxes shall be levied and extended based on such reduced assessment. b. Each property where taxes are levied and extended based on the assessment contained in a petition pursuant to title one of article seven of the real property tax law as provided for in subdivision a of this section shall be responsible for paying a disputed assessment charge. The amount of such disputed assessment charge shall be determined notwithstanding any provision of law to the contrary by subtracting the assessment on the tax roll upon which taxes were levied and extended from the property’s assessment on the final assessment roll with the difference then multiplied by the tax rates applied to the assessment on the tax roll upon which taxes were levied and extend. Such disputed assessment charge shall be calculated, collected and administered in the same manner as Nassau county real property taxes. c. The disputed assessment charge shall appear as a separate item on the bill submitted to property owners by each receiver of taxes. The revenues from such charges shall be placed in a special revenue fund hereby established as the disputed assessment fund which shall be maintained and administered by the Nassau county treasurer. The monies in such fund shall be used solely for the purposes specified in this section. d. Refunds of real property taxes on class four properties resulting from a settlement or final order from a count of competent jurisdiction on a petition pursuant to title one of article seven of the real property tax law or a determination or stipulation by the assessment review commission shall be paid from the disputed assessment fund. e. Any monies paid into the disputed assessment fund with respect to a property remaining after proceedings under title one of article seven of the real property tax law have been settled or otherwise finally determined by a court of competent jurisdiction or the assessment review commission shall be distributed pro rata to the county and the applicable school district, town and special districts. f. The levy and extension of taxes based on the petition initiating a timely proceeding as provided in subdivision a of this section shall not affect the application of any other provision of law except as expressly provided in this section. (Added by L. 2014, Ch. 458 in effect November 21, 2014.)” (emphasis added)1. The DAF law was amended by the State Legislature in July of 2018 and limits the effect of Section 6-41.0 to only those real property taxes and other amounts levied on the 2016/17 and 2017/18 tax rolls. Pursuant to said amendment, the charges collected in connection with such tax rolls are accounted for separately from amounts collected on subsequent tax rolls. Further, the amendment creates a new section of the NCAC, namely 6-42.2 which creates a new procedure for the disputed assessment fund on all Class IV real property where Nassau County shall levy charges on all Class IV property owners not to exceed 10 percent which shall appear as a separate item on their tax bill and be placed in a separate fund (DAF). The amendment provides that any refunds resulting from a settlement or court order or a stipulation shall be paid from DAF but also does not prevent the County from funding the cost of any refunds from another source, however, the amendment is explicit in stating that the DAF funds are not County revenues nor are the refunds paid from DAF, County expenditures. Based upon the foregoing law, where a Class IV property owner commences a proceeding pursuant to Article 7; and seeks a reduction in its assessment of 10 percent or less, the assessment is automatically reduced to the amount demanded by the petitioner. The taxpayer then makes two payments: (1) the real property tax based upon the reduced assessment, and (2) the difference between what the tax would have been, had the assessment not been reduced, and the tax based upon the reduced assessment. This second payment, the DAF charge, is held in a separate fund, namely, the DAF fund, and maintained in that fund until settlement or a final order from a court of competent jurisdiction or a stipulation or determination by the assessment review commission has been made. Any refunds due petitioner pursuant to the foregoing shall be made from the DAF fund. Where a Class IV property owner seeks a reduction greater than 10 percent of its assessment, the DAF law provides that the assessment shall be reduced to 90 percent of the property’s assessment on the final assessment roll unless the assessor in his or her discretion based on reasonable evidence determines that it is in the best interest of the county to reduce the assessment by more than 10 percent. The taxpayer still makes two separate payments, the tax payment will be less and the DAF charge will be more depending on how much the assessment is reduced. However, in both cases it would appear that the total payments made by the taxpayer between the reduced assessment and the DAF charge would equate to the original assessment due prior to the petitioner filing an Article 7 proceeding. Finally, the DAF law provides that any monies remaining in the fund after the Article 7 proceeding is settled or adjudicated, are distributed pro rata to the county and the applicable school district, town and special districts. However, should the taxpayer obtain a reduction in its assessment greater than the DAF charge, it appears the shortfall will be paid by Nassau County, essentially becoming a “county charge”, pursuant to the County Guaranty. DELCO filed an Article 7 proceeding for the 2016/17 tax year and for the 2017/18 tax year. For the 2016/17 tax year the assessor determined that DELCO’s DAF charge would be 15 percent of its assessment and for the 2017/18 tax year the assessor determined that the DAF charge would be 20 percent of its assessment. It appears that for both years, DELCO submitted in its Article 7 proceeding that its assessment should have been reduced by a number greater that 10 percent. The County moves to dismiss plaintiff’s action contending that plaintiff’s complaint is essentially a claim that the DAF charge that was imposed was based upon an error of law and an abuse of discretion; and that plaintiff’s action should have been raised via Article 78 within four months of the receipt of plaintiff’s tax bills. DELCO’s action primarily seeks declaratory relief pursuant to constitutional challenges claiming that section 6-41.0 of the NCAC is unconstitutional, illegal and void. CPLR Article 2 — “Limitations of Time” does not specifically prescribe a period of limitation for a declaratory judgment action. “That is not to say, however, that the six-year catch-all limitation of CPLR 213 (subd 1) therefore automatically or necessarily governs all such action.”(Solnick v. Whalen, 49 N.Y.2d 224, 229 [1980]) “In order to determine therefore whether there is in fact a limitation prescribed by law for a particular declaratory judgment action it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought..” (id.)(internal citations omitted) If, after examining the rights of the parties sought to be stabilized in the action for declaratory relief, they are or have been, open to resolution through a form of proceeding for which a specific limitation period is statutorily provided, then that limitation period will be applicable to the commencement of the declaratory judgment action. (id. at 229, 230) DELCO’s first two causes of action raise constitutional questions based upon the lack of legislative oversight and an undue delegation of authority to the Nassau County Assessor in violation of Article XVI, Section 1 of the New York State Constitution. DELCO’s third cause of action raises due process claims alleging that the DAF law does not contain a provision for review of the discretionary amount placed on Class IV properties by the County Assessor. DELCO’s fourth and fifth causes of action raise equal protection claims in that plaintiff alleges the DAF law creates separate categories of Class IV taxpayers and in the alleged violation of Article 18 of the RPTL. Plaintiff’s sixth cause of action alleges unjust enrichment and the seventh cause of action alleges the DAF law is in contravention to the “County Guaranty”. DELCO’s first, second, fourth and fifth causes of action all raise constitutional questions which cannot be resolved pursuant to an Article 78 proceeding and therefore the six-year statute of limitations pursuant to CPLR §213(1) is applicable. Based upon plaintiff’s receipt of its general tax bill for the year 2016/17 in January of 2017 and the receipt of its general tax bill for the year 2017/18 in January of 2018, which both included the DAF “charge”, the plaintiff’s first, second, fourth and fifth causes of action are timely. Plaintiff’s sixth and seventh causes of action do not raise any administrative action reviewable by Article 78 and are also not time-barred. The plaintiff’s sixth cause of action alleging unjust enrichment is based upon the same facts as its constitutional and due process claims and, since under New York law, there is no identified statute of limitations period within which to bring a claim for unjust enrichment, the six-year limitations for this declaratory judgment action applies to the unjust enrichment claim as well. (see Maya Ny, LLC v. Hagler 106 A.D.3d 583 [1st Dept. 2013]). Plaintiff’s seventh cause of action is also timely as it questions the validity of the DAF law with respect to the “County Guarantee”. Plaintiff’s third cause of action, which essentially questions the discretionary DAF amounts placed on Class IV properties by the Assessor, is reviewable pursuant to an Article 78 proceeding. Without considering the merits of whether the Assessor’s discretionary decision is an undue delegation of authority, pursuant to the NCAC 6-41.0, the Assessor is authorized to decide the amount of DAF to place on the Class IV property that is seeking greater than a 10 percent reduction in its assessment. The ultimate determination by the assessor as to the DAF charge is an administrative decision reviewable by Article 78. The fact that plaintiff challenges this determination in terms of constitutionality (due process) does not serve to make unavailable the Article 78 proceeding — the appropriate vehicle to challenge an administrative determination. (see Solnick at 230, 231). Plaintiff’s time to commence an Article 78 proceeding expired four months from the receipt of its General Tax bill in January 2017 and January 2018. As this action was commenced on or about September 10, 2018, plaintiff’s third cause of action is untimely. Accordingly, plaintiff’s third cause of action is dismissed as time-barred. Defendants also claim that plaintiff’s action is barred for failure to comply with County Law §52 and NCAC §11-4.1. County Law §52 states, in pertinent part, “Any claim or notice of claim against a county for damage, injury or death, or for invasion of personal or property rights…must be made and served in compliance with section fifty-e of the general municipal law. Every action upon such claim shall be commenced pursuant to the provisions of section fifty-I of the general municipal law. The place of trial shall be in the county against which the action is brought.” Nassau County Administrative Code §11-4.1 states, in pertinent part, “Any claim against the county for damages for death or for injuries to person or property, invasion of personal or property rights of every name and nature whatsoever…arising at law or inequity,…must be presented in writing to the clerk of the Board of Supervisors of the county and to the County Attorney within thirty days after such damages or injury to person or property were sustained…and…the action has been commenced within one year and ninety days of the happening of the event upon which the claim is based…” Defendants claim that based upon the plain language of the aforesaid laws, the plaintiff was required to file a notice of claim. In support of their contention, the County cites the case of Picciano v. Nassau County Civil Service Comm’n, 290 A.D.2d 164, 2nd Dept. 2001. In Picciano, the plaintiff commenced an action pursuant to the Human Rights Law, inter alia, to direct Nassau County to appoint him to the position of correction officer after having been denied due to a color vision deficiency. (see Picciano, at 165). The Court there addressed the issue of whether a notice of claim is a condition precedent to commencement of an action against Nassau County based on the Human Rights Law, where primarily injunctive relief was sought rather than monetary damages. (id. at 169) The Picciano Court found that because Nassau County Law §52 is broad enough to include any claim for damages “arising at law or in equity”, the Human Rights Law, while not a traditional tort, is subject to the notice of claim requirements of County Law §52. (id. at 172) However, the Picciano court also held that Picciano’s action was not brought to vindicate a public interest, (which would not require the filing of a notice of claim) as Picciano contended, as the disposition of the case would not directly affect the rights of others “particularly since the extent of his alleged disability and any job accommodations would be an individualized determination”. (see Picciano at 169) “In the area of civil rights, this court has recognized an important exception to the notice requirement. In Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd. (35 NY2d 371, 380), it held that notice of claim requirements do not apply to actions brought “to vindicate a public interest.” All actions brought to enforce civil rights can be said to be in the public interest (see Newman v. Piggie Park Enterprises, 390 U.S. 400, 402). But, actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before commencement of an action (see Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 NY2d 371, 379-380, supra; Board of Educ. v. New York State Div. of Human Rights, 44 NY2d 902, 903-904; cf. Alyeska Pipeline Co. v. Wilderness Soc., 421 U.S. 240, 285 [Marshall, J., dissenting]).” (Mills v. Cty. of Monroe, 59 N.Y.2d 307[1983]) (emphasis added). Here, the gravamen of plaintiff’s action is whether the “DAF” law is unconstitutional in its delegation of authority to the Nassau County Assessor and whether the due process rights of all Class IV property owners are affected by its application. Accordingly, the disposition of this matter can vindicate a public interest as all Class IV property owners’ rights will be affected and their interests in a resolution on the merits of the action override the County’s interest in receiving timely notice before commencement of the action. Further, the Court of Appeals has recognized that notice of claim statutes, such as §3813 of the Education Law, were historically meant to apply in negligence and even contractual actions so that the school district, or municipal organization in this instance, would have the opportunity to investigate the claims factually prior to the initiation of litigation. (see Niagara Mohawk Power Corp. v. City School Dist. 59 N.Y.2d 262 [1983]). Where, as here, a plenary action is commenced attacking the authority of the Assessor as unconstitutional, there is no need for a prior notice of claim to allow for investigation, adjustment or administrative action as it is purely a legal question. (id. at 269, 270) Accordingly, the defendant’s contention that plaintiff’s action is barred for failure to file a notice of claim is without merit. As this motion is not one for summary judgment, the Court is refrained from making a determination as to the constitutionality of the DAF law. However, the Court will consider the extensive arguments made by the parties as to whether the DAF “charge” constitutes a “tax” as argued by plaintiff or a “fee” as argued by the defendants. Plaintiff annexes its School and General Tax Bill for the 2016/17 taxes to the summons and complaint. The Assessed Value that was determined by the Nassau County Department of Assessment for its property on the final tax roll was 157628. Although plaintiff challenged this assessment via an Article 7 proceeding, there was no formal disposition of the matter prior to July 22, 2016 and therefore, the Assessed Value is not reduced for purposes of the 2017 tax bill. After multiplying the assessed value by the tax rate, it appears that the plaintiff’s combined school taxes were $819,698.70. However, due to plaintiff’s challenge of its assessment, and pursuant to the discretion and determination of the county assessor (as provided for in the subject DAF law), the total school taxes were multiplied by .15 or 15 percent to determine the DAF amount. The DAF amount is exactly $122,954.80, which is reflected on the 2017 School Tax Bill. Once this amount was subtracted from the total combined school taxes, the plaintiff paid $696,743.90 in combined school taxes. The $122,954.80 DAF amount would then be billed on the plaintiff’s General Tax Bill. Plaintiff’s combined General Taxes for the 2016/17 tax years was $643,415.95. Again, after multiplying this number by the .15 or 15 percent, the plaintiff paid $547,005.11 in general taxes and the DAF amount that was subtracted from plaintiff’s total general taxes was $96,410.84. Plaintiff’s total DAF amount was $219,365.64. Plaintiff paid this amount and it appears from defendants’ submissions that this amount is currently being held in an account maintained by the Nassau County Treasurer. Pursuant to the DAF law, if the plaintiff is entitled to a refund it will be paid from this DAF account/fund. The remaining balance of the DAF amount after reimbursement to plaintiff of any refund, according to the DAF law, would then be distributed to the taxing jurisdictions pro rata. Defendant contends that the DAF amount is not a tax but a fee that is incurred by the plaintiff after having challenged its assessment, in this case, by more than 10 percent. Defendant bases its arguments on the Matter of Homestead Funding Corp. v. State of N.Y. Banking Dept. (95 A.D.3d 1410, 944 N.Y.S.2d 649 [3rd Dept. 2012]) stating, as the Court did in that case, that “A tax is a charge imposed upon citizens to defray the costs of government services and operations generally, whereas a fee is a charge, imposed upon certain citizens or entities who use particular services of or obtain benefits from a particular governmental program or agency, to defray the costs of those services or benefits” (internal citations omitted). This Court fails to see, as defendants suggest, the services being provided by the defendants or benefit from a particular program or agency. In Homestead, the plaintiff, a mortgage bank, was challenging an assessment by the Banking Department which charges mortgage banks an annual general assessment to cover the cost of its operations associated with overseeing such entities (Homestead, at 651) Here, the plaintiff is paying a DAF amount in addition to taxes based upon a reduced assessment. This amount is equal to, or substantially equal to, that which was part of its General and School Taxes due. Although the amounts are placed in a dedicated fund which, if plaintiff is due a refund because it challenged its assessment, it would presumably be refunded more quickly than those Class I, II or III properties that do not have a DAF fund, there is no specific service being provided and no specific benefit obtained. Defendants’ contentions that the DAF amount is a fee rather than a tax are unavailing. However, this Court also does not agree with plaintiff’s contention that the DAF amount is a separately assessed tax levied on Class IV property owners challenging their assessment. The DAF amount is a portion of the taxes due from plaintiff to all the various taxing entities for that particular tax year. So, the amount paid by the plaintiff in DAF consist of taxes that raise revenue for the support of government generally. (Homestead at 652) The DAF amount is placed in the DAF fund which, in this Court’s view, is akin to an escrow fund. The fund is held separately in an interest-bearing account maintained by the County treasurer, and once it is determined that a Class IV property is due a refund, it will be paid out of that account. If the Class IV property is entitled to a refund, due to an over assessment and the refund is less that the DAF amount paid by the property owner, the Class IV property owner is not entitled to the balance of the DAF amount paid. These monies did not belong to the Class IV property owner to begin with. It was money due in taxes to the various governing entities by the Class IV property owner based upon their reduced assessment. Accordingly, it is abundantly clear that the DAF amounts are taxes and not fees. At this juncture, the Court is procedurally constrained from determining whether the DAF law is unconstitutional in its delegation of authority to the Nassau County Assessor and whether the due process rights of all Class IV property owners are affected by its application. Further, notwithstanding the fact that the Court cannot make a determination on the merits of the plaintiff’s unjust enrichment cause of action, the submissions before this Court would not be sufficient to make a dispositive determination as to that cause of action as well. Accordingly, the defendant’s motion to dismiss pursuant to CPLR §3211(a)(5) is granted to the limited extent that the third cause of action set forth in the plaintiff’s complaint in the instant action is herewith dismissed. The parties shall appear before the undersigned on Monday November 25, 2019 at 9:30 A.M. for a Scheduling Conference in this matter. This Constitutes the decision and order of this Court. Any request for relief not expressly granted herein is denied. So ordered. Dated: November 15, 2019
