3036 - Civil actions by persons other than taxpayers.
§ 3036. Civil actions by persons other than taxpayers. (a) Actions permitted. (1) Wrongful levy. If a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the state of New York in the court of claims. Such action may be brought without regard to whether such property has been surrendered to or sold by the commissioner. (2) Surplus proceeds. If property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which the levy arose) who claims an interest in or lien on such property junior to that of the state of New York and to be legally entitled to the surplus of the proceeds of such sale may bring a civil action against the state of New York in the court of claims. (b) Adjudication. The court shall have jurisdiction to grant only such of the following forms of relief as may be appropriate in the circumstances: (1) Injunction. If a levy or sale would irreparably injure rights in property which the court determines to be superior to rights of this state in property, the court may grant an injunction to prohibit the enforcement of such levy or to prohibit such sale. (2) Recovery of property. If the court determines that such property has been wrongfully levied upon, the court may: (A) order the return of specific property if this state is in possession of such property; (B) grant a judgment for the amount of money levied upon; or (C) if such property was sold, grant a judgment for an amount equal to the actual direct and consequential damages proven. (3) Surplus proceeds. If the court determines that the interest or lien of any party to an action under this section was transferred to the proceeds of a sale of such property, the court may grant a judgment in an amount equal to all or any part of the amount of the surplus proceeds of such sale. (c) Validity of assessment. For purposes of an adjudication under this section, the assessment of tax upon which the interest or lien of the department is based shall be conclusively presumed to be valid. (d) Limitation on rights of action. No action may be maintained against any sheriff acting on behalf of the commissioner or any officer or employee of the department (or former sheriff, officer or employee) or his personal representative with respect to any acts for which an action could be maintained under this section. (e) Substitution of the state as party. If an action, which could be brought against the state under this section, is improperly brought against any sheriff acting on behalf of the commissioner or any officer or employee of the department (or former sheriff, officer or employee) or his personal representative, the court shall order, upon such terms as are just, that the pleadings be amended to substitute the state as a party for such sheriff, officer or employee as of the time such action was commenced upon proper service of process on the state.