Davidson v. Rochester Telephone Corp.

Yesawich, Jr., J.,

dissents and votes to reverse in a memorandum. Yesawich, Jr., J. (dissenting). I respectfully disagree. While exhaustion of administrative remedies before commencing suit is indeed the usual rule, that is not the situation where the agency’s action is asserted to be either unconstitutional or beyond its authority (see, Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52, 57). Here, plaintiff challenges the applicability of Tax Law § 1105 (b) to Federally mandated interstate subscriber line charges. Whether a certain provision of the Tax Law applies in a given situation is…