        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

462
CA 13-01800
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF NIAGARA MOHAWK POWER
CORPORATION, DOING BUSINESS AS NATIONAL
GRID, PETITIONER-PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF MARCY ASSESSOR, TOWN OF MARCY BOARD
OF ASSESSMENT REVIEW AND TOWN OF MARCY,
RESPONDENTS-DEFENDANTS-RESPONDENTS.


HISCOCK & BARCLAY, LLP, ALBANY (KARLA M. CORPUS OF COUNSEL), FOR
PETITIONER-PLAINTIFF-APPELLANT.

GORMAN, WASZKIEWICZ, GORMAN & SCHMITT, UTICA (WILLIAM P. SCHMITT OF
COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Oneida County (Samuel D. Hester, J.), entered December
14, 2012 in a CPLR article 78 proceeding and declaratory judgment
action. The judgment, among other things, granted respondents-
defendants’ cross motion for summary judgment dismissing the
petitions-complaints.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the provision dismissing
the petitions-complaints and granting judgment in favor of
respondents-defendants as follows:

          It is ADJUDGED and DECLARED that the imposition of ad
     valorem levies for garbage collection and sewer services
     against the subject properties is valid,

and as modified the judgment is affirmed without costs.

     Memorandum: In this hybrid CPLR article 78
proceeding/declaratory judgment action, petitioner-plaintiff
(plaintiff) contends that various parcels of real property it owns in
respondent-defendant Town of Marcy (Town) should not be subject to
special ad valorem levies imposed by the Town’s sewer and garbage
districts because the subject properties are not benefitted by the
districts’ services, and that Supreme Court therefore erred in denying
its motion for summary judgment seeking a declaration to that effect
and in granting the cross motion of respondents-defendants
(defendants) for summary judgment. We reject that contention. “The
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                                                         CA 13-01800

test for determining whether real properties are benefitted, thus
warranting special district assessment, is whether the properties are
‘capable of receiving the service funded by the special ad valorem
levy’ ” (Matter of Niagara Mohawk Power Corp. v Town of Tonawanda
Assessor, 17 AD3d 1090, 1091, affd sub nom. Matter of Niagara Mohawk
Power Corp. v Town of Watertown, 6 NY3d 744, quoting New York Tel. Co.
v Supervisor of Town of Oyster Bay, 4 NY3d 387, 393). “An ad valorem
tax will not be deemed invalid unless the taxpayer’s benefit received
from the imposition of the tax is reduced to the point where it is, in
effect, nonexistent” (Water Club Homeowner’s Assn., Inc. v Town Bd. of
Town of Hempstead, 16 AD3d 678, 679 [internal quotation marks
omitted]; see Matter of Sperry Rand Corp. v Town of N. Hempstead, 53
Misc 2d 970, 971-973, affd 29 AD2d 968, affd 23 NY2d 666).

     Here, “ ‘there is a sufficient theoretical potential of the
properties to be developed in a manner that will result in the
generation of garbage [and sewage]’ ” (Town of Watertown, 6 NY3d at
748, quoting Town of Tonawanda Assessor, 17 AD3d at 1092). Unlike the
plaintiff in Long Is. Water Corp. v Supervisor of Town of Hempstead
(77 AD3d 795, lv denied 16 NY3d 711), plaintiff herein owns the land
on which its “mass” properties sit, and we conclude that it is
theoretically possible that such land, if put to a different use,
could generate garbage and sewage.

     Supreme Court therefore properly denied plaintiff’s motion and
properly granted defendants’ cross motion. Because plaintiff sought
declaratory relief, however, the court erred in dismissing the
petitions-complaints without declaring the rights of the parties (see
New York Tel. Co. v Supervisor of Town of Oyster Bay, 6 AD3d 511, 512,
affd 4 NY3d 387; Restuccio v City of Oswego, 114 AD3d 1191, 1191), and
we therefore modify the judgment accordingly.




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
