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IND. DRIVERS ASSN. v. URBACH

279 A.D.2d 171 (2000)

718 N.Y.S.2d 282

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION et al., Appellants, v. MICHAEL H. URBACH, as Commissioner of the New York State Department of Taxation and Finance, Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 7, 2000.

Attorney(s) appearing for the Case

Paul D. Cullen, Sr., of counsel (Cary B. Samowitz and Joseph A. Black on the brief; Lord, Bissell & Brook, and Cullen Law Firm, attorneys), for appellants.

Deon J. Nossel of counsel (Robert A. Forte on the brief; Eliot Spitzer, Attorney General of the State of New York, attorney), for respondent.

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI and BUCKLEY, JJ., concur.

OPINION OF THE COURT

RUBIN, J.

In this class action, plaintiffs seek to invalidate the fuel use tax (Tax Law § 523) as violative of the Commerce Clause (US Const, art I, § 8, cl [3]) insofar as the tax is imposed on commercial vehicles operated on the New York Thruway. Plaintiffs contend that the tax, which is calculated on the mileage driven on New York highways, constitutes an undue burden on interstate commerce because it is not fairly related...

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