[*2]Appeal by plaintiffs from a small claims judgment of the Justice Court, Town of Ramapo, Rockland County (A. Etelson, J.), entered on July 7, 2002, in favor of defendant dismissing the action.

Judgment unanimously affirmed without costs.

In this small claims action for money had and received, plaintiffs sought to recover a refund of a portion of the school taxes for the year 2000 paid under protest. The court below dismissed the action on the ground that the court lacked jurisdiction to determine whether or not the defendant acted illegally.

The Small Claims Part of the Justice Court is a court of limited jurisdiction (UJCA 1801; see also UJCA 202). The instant action commenced by plaintiffs seeking to have the court overturn a taxing authority's determination and find said tax illegal, excessive or void is not incidental to the cause of action for money had and received. Plaintiffs' remedy to challenge said tax assessment was a certiorari proceeding pursuant to article 7 of the Real Property Tax Law, an article 78 proceeding or a declaratory judgment action (see Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 204; Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262). Absent such a determination by a court with jurisdiction to render such a decree, plaintiffs cannot recover upon a theory of money had and received in a small claims court.
[*3]Decision Date: July 29, 2003