                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   522214
________________________________

In the Matter of LEVEL 3
   COMMUNICATIONS, LLC,
                    Appellant,
      v

CLINTON COUNTY et al.,                      OPINION AND ORDER
                    Respondents,
      and

VILLAGE OF ROUSES POINT
   et al.,
                    Respondents.
________________________________


Calendar Date:   September 6, 2016

Before:   Peters, P.J., McCarthy, Lynch, Rose and Clark, JJ.

                             __________


      Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York
City (John G. Nicolich of counsel), for appellant.

      Stafford, Owens, Piller, Murnane, Kelleher & Trombley,
PLLC, Plattsburgh (Brendan P. Owens of counsel), for Village of
Rouses Point and others, respondents.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Ellis, J.),
entered February 27, 2015 in Clinton County, which, in a combined
proceeding pursuant to CPLR article 78 and action for declaratory
judgment, among other things, partially granted respondents'
motions to dismiss the petition/complaint.
                              -2-                522214

      Petitioner, a telecommunications company, owns fiber optic
installations located on private rights-of-way at various
locations within Clinton County. In May 2013, following a
decision of the First Department ruling that petitioner's fiber
optic installations are not taxable real property under RPTL 102
(12) (i) (Matter of RCN N.Y. Communications, LLC v Tax Commn. of
the City of N.Y., 95 AD3d 456 [2012], lv denied 20 NY3d 855
[2012]), petitioner filed applications pursuant to RPTL 556-b
with seven tax-assessing entities within the County seeking
refunds of real property taxes paid on such installations for the
years 2010-2012 and removal of the subject properties from the
tax rolls. When the applications were not granted, petitioner
commenced this combined CPLR article 78 proceeding and action for
declaratory judgment seeking, among other things, a refund of
real property taxes paid during the relevant years and a
declaration that its fiber optic installations are not taxable
real property under the RPTL. Supreme Court partially dismissed
the petition/complaint, concluding that petitioner's fiber optic
installations are taxable real property under RPTL 102 (12) (f)
and that, in any event, petitioner was precluded from recovering
the requested refunds on the ground that it had paid the taxes
voluntarily. Petitioner appeals.

      We first address petitioner's application for a judgment
declaring that its fiber optic installations are not taxable real
property under the RPTL. Resolution of this issue turns upon the
construction of RPTL 102 (12) (f),1 which provides that real
property shall include, among other things, "equipment for the
distribution of heat, light, power, gases and liquids." The
parties agree that the fiber optic cables at issue consist of
filaments of glass through which light beams are used to
transport information and data from one point to another. Yet


    1
        Supreme Court, relying on Matter of RCN N.Y.
Communications, LLC v Tax Commn. of the City of N.Y. (95 AD3d 456
[2012], supra), ruled that petitioner's fiber optic installations
do not constitute real property under RPTL 102 (12) (i), and none
of the respondents argue otherwise on this appeal as an
alternative ground for affirmance (see generally Parochial Bus
Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]).
                              -3-                522214

they sharply disagree as to whether this constitutes the
"distribution" of light within the meaning of RPTL 102 (12) (f).
For the reasons that follow, we hold that it does not.

      It is fundamental that, "[i]n matters of statutory
interpretation, our primary consideration is to discern and give
effect to the Legislature's intention" (Matter of Albany Law
School v New York State Off. of Mental Retardation & Dev.
Disabilities, 19 NY3d 106, 120 [2012]; see Beck Chevrolet Co.,
Inc. v General Motors LLC, 27 NY3d 379, 389-390 [2016]). "As the
clearest indicator of legislative intent is the statutory text,
the starting point in any case of interpretation must always be
the language itself" (Majewski v Broadalbin-Perth Cent. School
Dist., 91 NY2d 577, 583 [1998]; accord Matter of Shannon, 25 NY3d
345, 351 [2015]). Moreover, "[w]hen the particular statute is
one which levies a tax, it is well established that it must be
narrowly construed and that any doubts concerning its scope and
application are to be resolved in favor of the taxpayer"
(Debevoise & Plimpton v New York State Dept. of Taxation & Fin.,
80 NY2d 657, 661 [1993]; see Trump Vil. Section 3, Inc. v City of
New York, 24 NY3d 451, 456 [2014]; Matter of Bloomingdale Bros. v
Chu, 70 NY2d 218, 223 [1987]).

      Notably, the RPTL does not define the term "distribution."
Thus, in the absence of a controlling statutory definition, we
"construe words of ordinary import with their usual and commonly
understood meaning, and in that connection have regarded
dictionary definitions as useful guideposts in determining the
meaning of a word or phrase" (Yaniveth R. v LTD Realty Co., 27
NY3d 186, 192 [2016] [internal quotation marks and citation
omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 232
at 392-393; People v Finley, 10 NY3d 647, 654 [2008]).
"Distribute" is commonly defined as "to divide among several or
many," "to spread out so as to cover something" and "to give out
or deliver especially to members of a group" (Merriam—Webster
Online Dictionary, http://www.merriam-webster.com/dictionary/
distribute). Here, petitioner's fiber optic cables do not
"distribute" light within these commonly understood meanings of
the term. Rather, the light signals transmitted over the fiber
optic cables terminate in an optical receiver, which reads the
light, decodes the signals and sends electric signals to other
                               -4-                522214

sources such as computers, televisions and telephones. Thus,
while the fiber optic cables at issue undeniably transmit light
signals from one end of the network to the other, such
transmission does not result in the "distribution" of light, but
rather data.

      In ruling otherwise, Supreme Court reasoned that there is
no meaningful distinction between the words "transmit" and
"distribute" as those words are commonly defined and applied to
the telecommunications industry. Yet, the commonly understood
meaning of the word "distribute" incorporates concepts of
apportionment, allocation or spreading that are absent from the
commonly understood meaning of the word "transmit" – which
plainly embraces the function to which the fiber optic cables are
put vis-à-vis the light signals.2 Moreover, Supreme Court's
interpretation fails to take into account the fact that the terms
"distribution" and "transmission" are independently used in
separate subdivisions of RPTL 102 (12) (compare RPTL 102 [12] [f]
[defining real property to include "equipment for the
distribution of heat, light power gases and liquids"], with RPTL
102 [12] [i] [defining real property to include certain "lines,
wires, poles, supports and inclosures for electrical conductors
. . . used in connection with the transmission or switching of
electromagnetic voice, video and data signals"]).3 Where "the


     2
        "Transmit" is commonly defined as to "cause (as light or
force) to pass or be conveyed through space or a medium"
(Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/transmit).
     3
        Indeed, the Legislature regularly enacts legislation that
uses both the words "distribution" and "transmission" in the same
sentence, phrase or subdivision – a circumstance lending
additional support to our conclusion that a distinction between
the terms was intended here (see e.g. RPTL 1801 [c] [referring to
certain property "used in the generation, storage, transmission,
distribution or sale of gas, electricity, steam, water,
refrigeration, cable television, telephone or telegraph
service"]; Tax Law § 186-a [2] [c] [repeatedly referring to the
"transmission or distribution" of gas or electricity]; Public
                              -5-                522214

Legislature uses different terms in various parts of a statute,
courts may reasonably infer that different concepts are intended"
(Rangolan v County of Nassau, 96 NY2d 42, 47 [2001]; see
McKinney's Cons Laws of NY, Book 1, Statutes § 236 at 403; Orens
v Novello, 99 NY2d 180, 187 [2002]; People v Brancoccio, 83 NY2d
638, 642 [1994]). To attribute the same meaning to
"distribution" and "transmission" would render one of these terms
superfluous, an outcome that is to be avoided (see Matter of
Springer v Board of Educ. of the City Sch. Dist. of the City of
N.Y., 27 NY3d 102, 107 [2016]; Nostrom v A.W. Chesterton Co., 15
NY3d 502, 508 [2010]; Majewski v Broadalbin-Perth Cent. Sch.
Dist., 91 NY2d at 587). We therefore treat the Legislature's
distinct use of those terms as evincing a separate meaning for
each. Construing RPTL 102 (12) (f) narrowly and resolving any
doubt as to its scope in favor of petitioner (see Trump Vil.
Section 3, Inc. v City of New York, 24 NY3d at 456; Debevoise &
Plimpton v New York State Dep't of Taxation & Finance, 80 NY2d at
661), we conclude that the fiber optic cables at issue do not
constitute equipment for the "distribution . . . of light" within
the meaning of the statute.

      Our holding is also supported by the "well-established rule
of statutory construction . . . that a prior general statute
yields to a later specific or special statute" (Matter of
Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149, 153
[2001] [internal quotation marks and citation omitted]; see
Matter of Brusco v Braun, 84 NY2d 674, 681 [1994]). "[W]here the
Legislature enacts a specific provision directed at a particular
class, and a more general provision in the same statute which
might appear to encompass that class, the specific provision will
be applied" (Matter of Robert Bruce McLane Assoc. v Urbach, 232
AD2d 826, 828 [1996] [internal quotation marks and citation
omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 238
at 406; Matter of Rayshawn P., 103 AD3d 31, 41-42 [2012]; New
York State Crime Victims Bd. v T.J.M. Prods., 265 AD2d 38, 46
[2000]; Matter of Jeremy VV., 202 AD2d 738, 739 [1994]). RPTL
102 (12) (f) – the provision at issue here – was enacted in 1958


Service Law §§ 5 [1] [c]; 44 [5]; Rural Electric Cooperative Law
§ 14 [d], [g]).
                              -6-                522214

in connection with the recodification of various tax statutes
(see L 1958, ch 959). Nearly three decades later, the
Legislature enacted RPTL 102 (12) (i) for the specific purpose of
addressing real property taxation of telecommunications equipment
(see L 1985, ch 71, § 3). As the First Department noted in
finding that petitioner's fiber optic cables do not constitute
taxable real property under RPTL 102 (12) (i), "[t]he legislative
history, including the 1985 reports by the Tax Commission and the
State Board of Equalization and Assessment, reveals that the
Legislature was aware of fiber-optic technology and that
fiber-optic cables transmit light and do not conduct electricity.
Yet, the Legislature chose to limit assessments under RPTL 102
(12) (i) to wires and other related property 'for electrical
conductors'" (Matter of RCN N.Y. Communications, LLC v Tax Commn.
of the City of N.Y., 95 AD3d at 457). Inasmuch as subdivision
(i) of RPTL 102 (12) specifically addresses the taxability of
property used for telecommunication services, that subdivision –
not subdivision (f) of the statute – would control in the event
of a conflict between the two provisions. For all of these
reasons, we modify the judgment of Supreme Court and declare that
petitioner's fiber optic installations are not real property
taxable under RPTL 102 (12).

      With respect to its refund applications, we find that
petitioner failed to demonstrate its entitlement to such relief
for the tax years under review. To obtain a refund of taxes paid
under a mistake of law, "it is incumbent upon the taxpayer to
establish appropriate legal protest prior to or at the time of
payment as a prerequisite to recovery" (Corporate Prop. Invs. v
Board of Assessors of County of Nassau, 153 AD2d 656, 660 [1989],
affd 80 NY2d 961 [1992]; see City of Rochester v Chiarella, 58
NY2d 316, 323 [1983], cert denied sub nom. Quality Packaging
Supply Corp. v City of Rochester, 464 US 828 [1983]; Regional
Economic Community Action Program, Inc. v Enlarged City School
Dist. of Middletown, 79 AD3d 723, 724 [2010], affd 18 NY3d 474
[2012]).4 "This requirement ensures that governmental entities


    4
        To the extent that petitioner argues that it was improper
for Supreme Court to rely on the voluntary payment doctrine
inasmuch as it was not cited by the tax levying bodies as a basis
                              -7-                  522214

have notice that they may need to provide for tax refunds"
(Matter of Level 3 Communications, LLC v Essex County, 129 AD3d
1255, 1257 [2015] [citation omitted], lv denied 26 NY3d 907
[2015]; see Video Aid Corp. v Town of Wallkill, 85 NY2d 663, 667
[1995]). Here, it is undisputed that petitioner paid all of the
relevant taxes, and there is nothing in the record indicating
that such payments were made under protest or were otherwise
involuntary (see Matter of Level 3 Communications, LLC v Essex
County, 129 AD3d at 1257; Community Health Plan v Burckard, 3
AD3d 724, 725 [2004]). Accordingly, Supreme Court properly
denied that portion of the petition which sought a refund of
taxes paid.

      Petitioner's remaining contentions have been reviewed and
found to be without merit.

     McCarthy, Lynch, Rose and Clark, JJ., concur.


      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as dismissed that part of the
petition/complaint seeking a declaratory judgment; it is declared
that petitioner's fiber optic installations do not constitute
taxable real property under RPTL 102 (12); and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court


for denying the refund applications, we have previously reviewed
and rejected this claim (see Matter of Level 3 Communications,
LLC v Essex County, 129 AD3d 1255, 1257 [2015]).
