Defendants City of Beacon and Joseph Braun move for an order pursuant to CPLR Rule 3211 dismissing the plaintiffs' complaint in its entirety. The plaintiffs oppose the defendants' application and cross-move for, inter alia, an order granting a default judgment against the defendants. For the following reasons, it is ordered that the defendants' motion is denied in its entirety. It is further ordered that the plaintiffs' cross-motion is also denied in its entirety.

Pursuant to an order of this court dated December 23, 2010, five of the plaintiffs' causes of action were dismissed as barred by the statute of limitations. The December 23, 2010 order further granted the plaintiffs' request to amend their complaint to assert causes of action under 42 USC §1983 for violations of due process and equal protection and to add Joseph Braun as an additional defendant. The plaintiffs assert that the defendants employed a policy of intentionally rejecting the formula set forth in RPTL Article 19 for determining homestead and non-homestead tax rates and instead disproportionately taxed commercial properties at a higher rate in an effort to increase non-homestead owners' taxes while not increasing the homestead property owners' taxes. The defendants now move to dismiss the plaintiffs' complaint as against Joseph Braun pursuant to CPLR Rule 3211(a)(5) and as against all defendants pursuant to CPLR Rule 3211(a)(7).

It is well settled that on any motion pursuant to CPLR Rule 3211, the court "must take the allegations (of the complaint) as true and resolve all inferences which reasonably flow therefrom in favor of the pleader." (Cron v. Hargro Fabrics, Inc., 91 NY2d 362, 366 [1998].) To dismiss a cause of action pursuant to CPLR Rule 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. (Kennedy v. Fischer, 78 AD3d 1016 [2nd Dept. 2010].) The burden then shifts to the plaintiff to allege evidentiary facts establishing that his cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies. (Id.) To dismiss a cause of action pursuant to CPLR Rule 3211(a)(7) on the ground that the plaintiff has failed to state a cause of action, the court must liberally construe the complaint and accept all facts as alleged therein to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Fishberger v. Voss, 51 AD3d 627 [2nd Dept. 2008].) [*2]

The court will first address the defendants' contention that the plaintiffs' action against defendant Braun is barred by the statute of limitations.^[FN1] Congress did not provide a federal statute of limitations for actions commenced under 42 USC §1983. Therefore, the appropriate New York limitations period must be applied. (See, Wilson v. Garcia, 471 US 261 [1985].) The accrual date for a cause of action under 42 USC §1983 is a matter of federal law, which provides that the action "accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." (Giovannetti v. Dormitory Authority of New York, 115 AD2d 851 [3rd Dept. 1985], aff'd 69 NY2d 621 [1986].)

The defendants have failed to meet their initial burden of establishing, prima facie, that the time in which to sue has expired. The defendants assert Braun's last act in relation to the calculation and adoption of homestead and non-homestead tax rates took place on December 17, 2007, when the 2008 Beacon City Budget was adopted. The plaintiffs contend the statute of limitations could not begin to accrue until they learned of the defendants' alleged intentional miscalculation, which occurred in August 2010 when they received affidavits of City of Beacon employees acknowledging the intentional miscalculation of the non-homestead property tax rate.

Even if the court were to assume the plaintiffs had reason to know of the alleged intentional conduct of the defendants prior to the plaintiffs' receipt of the 2010 affidavits, it cannot be concluded on this motion to dismiss that the plaintiffs' time to initiate their claims against defendant Braun accrued when the 2008 City budget was adopted. The last period in which the City applied the incorrect calculation was for the 2008 City Real Property Tax Assessment. Those taxes set forth in the 2008 City budget were assessed and became a lien on plaintiffs' property on January 1, 2008. It was thereafter incumbent upon the plaintiffs to initiate their 42 USC §1983 claim within three years. The plaintiffs' action was commenced prior to January 1, 2011 and is therefore timely. Accordingly, it is ordered that the defendants' motion to dismiss the complaint against defendant Braun is denied.

The defendants' remaining arguments on the instant motion to dismiss relate to the plaintiffs' alleged failure to state a cause of action. The defendants assert the plaintiffs' due process claim must be dismissed based on the existence of clear and certain remedies available to the plaintiffs under New York [*3]State law. A 42 USC §1983 due process claim is stated when a taxpayer demonstrates he or she has been the victim of "an aggravated pattern of misuse of taxing power." (S. Salina St. V. City of Syracuse, 68 NY2d 474, 484 [internal citations omitted].) A defense that a plaintiff has adequate state post-deprivation remedies lacks substance where the deprivation is random and unauthorized and not where it is a product of governmental policy. (Corvetti v. Town of Lake Pleasant, 227 AD2d 821 [3rd Dept. 1996].) Here, the gravamen of the plaintiffs' due process claim is that the over-taxation of non-homestead properties was part of an intentional governmental policy carried out by the defendants over a period of several years. Consequently, it was not necessary for the plaintiffs to resort to state post-deprivation remedies. Therefore, it is ordered that the defendants' motion to dismiss the plaintiffs' due process cause of action is denied.

The defendants also contend the plaintiffs have not alleged the necessary elements of an equal protection cause of action because everyone in the defined class of non-homestead real property owners in the City of Beacon were similarly treated. Thus, according to the defendants, there can be no equal protection violation. The defendants' argument is unavailing.

A statute valid on its face can still violate equal protection in its application. (Black v. Poughkeepsie, 1989 US Dist. LEXIS 12558 [S.D.NY Oct. 24, 1989].) Although it has long been accepted that state and local governments have wide discretion in the area of taxation, that discretion does not protect against intentional or arbitrary discrimination "resulting from the express terms of a statute or its improper execution by those charged with its enforcement". (Nash v. Assessor of Town of Southhampton, 168 AD2d 102, 106-107 [2nd Dept. 1991]. Where a distinction between taxpayers is invidiously discriminatory, i.e., purposeful or entirely arbitrary and capricious, equal protection is denied. (Giovannetti, supra).

The plaintiffs do not dispute the constitutionality of dual tax rates nor do they challenge the constitutionality of RPTL Article 19. Rather, the plaintiffs' complaint alleges an equal protection violation based on the manner in which the defendants applied the statute in that the defendants intentionally and improperly employed a policy of rejecting the formula set forth in RPTL Article 19 for determining homestead and non-homestead tax rates and instead disproportionately taxed commercial properties at a higher rate. Construing the plaintiffs' complaint liberally and accepting all facts as alleged therein to be true, the plaintiffs have sufficiently alleged disparate treatment which was invidiously discriminatory. Therefore, the defendants' motion to dismiss the plaintiffs' cause of action for [*4]equal protection violation is denied.

The plaintiffs have cross-moved pursuant to CPLR §3215 for an order and judgment against the defendants declaring them to be in default. The defendants oppose the application and contend the plaintiffs granted the defendants an extension to February 10, 2011 to answer the complaint or, alternatively, that the plaintiffs' retention of defendants' pre-answer motion precludes their request for a default judgment.

The plaintiffs have not established their entitlement to default judgment against the defendants. Pursuant to a letter to defendants' counsel dated February 3, 2011, counsel for the plaintiffs indicated that "[i]f an answer is not served by February 10, 2011, we will assume that your client is not going to answer the amended complaint and proceed accordingly." Defendants then filed their notice of motion to dismiss on February 8, 2011, within the time frame set forth by the plaintiffs. Therefore, it is ordered that the plaintiffs motion for a default judgment is denied. It is further ordered that the balance of the relief requested by the plaintiffs in their cross-

motion is denied as premature or academic.

The Court read and considered the following documents upon this application:

Exhibits.......................A

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

May 17, 2011

[*5]ENTER

HON. JAMES D. PAGONES, A.J.S.C.