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

291
CA 11-02072
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF ZEN CENTER OF SYRACUSE, INC.,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOHN C. GAMAGE, COMMISSIONER, DEPARTMENT OF
ASSESSMENT OF CITY OF SYRACUSE, COUNTY OF
ONONDAGA, STATE OF NEW YORK,
RESPONDENT-APPELLANT.


MARY ANNE DOHERTY, CORPORATION COUNSEL, SYRACUSE (SHANNON M. JONES OF
COUNSEL), FOR RESPONDENT-APPELLANT.

CLIFFORD FORSTADT, DEWITT (ROBERT TEMPLE OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Onondaga County (Donald A. Greenwood, J.), entered August 1, 2011 in a
proceeding pursuant to CPLR article 78. The judgment granted the
amended petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner is a not-for-profit corporation
“organized and operated for the furtherance of the Zen Buddhist
religion and activities related thereto.” Petitioner owns property in
the City of Syracuse, which it uses as a residential and dining
facility for students of Zen Buddhism and visiting clergy. Petitioner
commenced this hybrid CPLR article 78 proceeding and declaratory
judgment action seeking a real property tax exemption pursuant to RPTL
420-a (1) (a). Respondent appeals from a judgment granting the
amended petition and determining that petitioner is tax exempt for the
2010 tax year. We shall treat this as a proceeding solely pursuant to
CPLR article 78 inasmuch as petitioner may thereby obtain the relief
sought, without the necessity of a declaration. We affirm.

     Contrary to respondent’s contention, “there is no requirement
that an application be filed to obtain an RPTL 420-a exemption”
(Matter of Eternal Flame of Hope Ministries, Inc. v King, 76 AD3d 775,
777, affd 16 NY3d 778; see Kahal Bnei Emunim & Talmud Torah Bnei Simon
Israel v Town of Fallsburg, 78 NY2d 194, 201-204, rearg denied 78 NY2d
1008). Thus, Supreme Court properly granted petitioner the RPTL 420-a
exemption, despite the fact that petitioner did not file an
                                 -2-                          291
                                                        CA 11-02072

application for an exemption with respondent (see Kahal Bnei Emunim &
Talmud Torah Bnei Simon Israel, 78 NY2d at 201-204).

     Respondent further contends that the court erred in granting
petitioner the RPTL 420-a exemption because petitioner failed to
commence a tax certiorari proceeding pursuant to RPTL article 7 (see
generally RPTL 706). We reject that contention. RPTL 420-a (1) (a)
provides a mandatory tax exemption for “[r]eal property owned by a
corporation . . . organized or conducted exclusively for religious . .
. purposes, and used exclusively for carrying out thereupon . . . such
purposes . . . .” According to petitioner, respondent “wrongfully and
illegally failed to classify [the property] as exempt religious
property . . . .” A “proceeding commenced to challenge the denial of
a mandatory exemption is, in essence, a challenge to the taxing
authority’s jurisdiction over the subject property” (Eternal Flame of
Hope Ministries, Inc., 76 AD3d at 777; see Kahal Bnei Emunim & Talmud
Torah Bnei Simon Israel, 78 NY2d at 204-205; Hewlett Assoc. v City of
New York, 57 NY2d 356, 363-364; see also Xerox Corp. v Town of
Webster, 204 AD2d 990, 991). “It is well recognized that where a
challenge is made to the taxing authority’s jurisdiction over the
subject property, the settled rule that review of a tax assessment may
be obtained only by way of the statutory certiorari procedures is not
applicable” (Hewlett Assoc., 57 NY2d at 363; see Kahal Bnei Emunim &
Talmud Torah Bnei Simon Israel, 78 NY2d at 205; Xerox Corp., 204 AD2d
at 991). Thus, inasmuch as petitioner contends that the property is
wholly exempt from taxation pursuant to RPTL 420-a (1) (a), “review by
way of collateral proceedings is appropriate” (Hewlett Assoc., 57 NY2d
at 363; see Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel, 78
NY2d at 204-205; see also Xerox Corp., 204 AD2d at 991).

     Contrary to respondent’s contention, petitioner met its burden of
establishing that the subject property is used exclusively in
furtherance of its religious purpose (see RPTL 420-a [1] [a]; see e.g.
Congregation Rabbinical Coll. of Tartikov, Inc. v Town of Ramapo, 17
NY3d 763, 764; Matter of Adult Home at Erie Sta., Inc. v Assessor &
Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 215-216).
Respondent’s remaining contentions are not preserved for our review
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985; see generally
Matter of County of Niagara v Daines, 79 AD3d 1702, 1704, lv denied 17
NY3d 703) and, in any event, they are without merit.




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
