                         State of New York
                  Supreme Court, Appellate Division
                     Third Judicial Department
Decided and Entered:   May 7, 2015                    519389/519390
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________________________________

In the Matter of LYELL MT.
   READ BUSINESS CENTER LLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 1.)
________________________________

In the Matter of 2255 KENMORE
   AVENUE LLC,
                    Appellant,
      v                                    OPINION AND ORDER

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 2.)
_______________________________

In the Matter of GATEWAY
   BUSINESS CENTER LLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 3.)

________________________________
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In the Matter of LYELL
   BUSINESS & SHOPPING CENTER
   LLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 4.)
________________________________

In the Matter of ONE FORMAN
   PARK, LLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 5.)
________________________________

In the Matter of MELVIN &
   MELVIN, PLLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 6.)
________________________________
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In the Matter of HAZEN
   ENTERPRISES, INC.,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 7.)
________________________________

In the Matter of TREZZA
   REALTY, LLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 8.)
________________________________

In the Matter of ALEXANDER &
   CATALANO, LLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 9.)
________________________________
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In the Matter of PICCOLO
   PROPERTIES, LLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 10.)
________________________________

In the Matter of SACK &
   ASSOCIATES CONSULTING
   ENGINEERS, PLLC,
                    Appellant,
      v

EMPIRE ZONE DESIGNATION BOARD
   et al.,
                    Respondents.

(Proceeding No. 11.)
________________________________


Calendar Date:   March 27, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                            __________


      Hiscock & Barclay, LLP, Syracuse (David G. Burch Jr. of
counsel), for appellants.
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      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondents.

                           __________


Lynch, J.

      Appeals from 11 judgments of the Supreme Court (Melkonian,
J.), entered September 25, 2013 in Albany County, which, among
other things, dismissed petitioners' applications, in 11 combined
proceedings pursuant to CPLR article 78 and actions for
declaratory judgment, to review 11 determinations of respondent
Empire Zone Designation Board revoking petitioners'
certifications as empire zone business enterprises.

      New York's Empire Zones Program began in 1986 with the
enactment of the Economic Development Zones Act that was intended
to "stimulate private investment, private business development,
and job creation in certain geographic areas characterized by
persistent poverty, high unemployment, shrinking tax bases, and
dependence on public assistance" (James Sq. Assoc. LP v Mullen,
21 NY3d 233, 240 [2013]; see General Municipal Law § 956). In
2000, to further a desire to focus on business development, the
statute was amended to "relax[ ] eligibility requirements" (James
Sq. Assoc. LP v Mullen, 21 NY3d at 240). Then, in 2009, it was
amended again "to rein in abuses in the Empire Zones Program"
(id. at 241). Consequently, insofar as is relevant here,
respondent Department of Economic Development (hereinafter DED)
was directed to conduct a review in 2009 of all certified
business enterprises to determine whether decertification was
warranted on one of two grounds (see General Municipal Law § 959
[w]). First, DED could decertify a business enterprise if it was
a "shirt-changer," that is, if the enterprise was certified prior
to August 1, 2002, and it "caused individuals to transfer from
existing employment with another business enterprise with similar
ownership . . . to similar employment with [the enterprise] or if
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the enterprise acquired, purchased, leased, or had transferred to
it real property previously owned by an entity with similar
ownership, regardless of form of incorporation or ownership"
(General Municipal § 959 [a] [v] [5]; see 5 NYCRR 11.9; Matter of
WL, LLC v Department of Economic Dev., 97 AD3d 24, 27 n 3 [2012],
affd sub nom. James Sq. Assoc. LP v Mullen, 21 NY3d 233 [2013]).
Second, DED could decertify a business enterprise if it failed to
meet the 1:1 benefit-cost test (see Matter of WL, LLC v
Department of Economic Dev., 97 AD3d at 26-27; Matter of Office
Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 AD3d 1402,
1403 [2012]). The latter test required decertification where it
was determined that the enterprise "has submitted at least three
years of business annual reports [and it] has failed to provide
economic returns to the [s]tate in the form of total remuneration
to its employees (i.e., wages and benefits) and investments in
its facility that add to a greater value than the tax benefits
the business enterprise used and had refunded to it" (5 NYCRR
11.9 [c] [2]; see General Municipal Law § 959 [a] [v] [6]).

      These proceedings involve 11 business enterprises certified
pursuant to the Empire Zones Program that DED decertified in June
2009 pursuant to General Muncipal Law § 959 (w). Petitioners
Lyell Mt. Read Business Center LLC (hereinafter Lyell Mt. Read),
Gateway Business Center LLC (hereinafter Gateway) and Lyell
Business & Shopping Center LLC (hereinafter Lyell BSC) are
entities located in the City of Rochester, Monroe County that
were created to oversee and manage certain business interests and
real property owned by two individuals. Petitioner One Forman
Park, LLC (hereinafter OFP) was created in 1997 to develop office
space for an entity that eventually merged to become petitioner
Sack & Associates Consulting Engineers, PLLC (hereinafter Sack).
Both OFP and Sack are located in the City of Syracuse, Onondaga
County and were certified as empire zone enterprises in July
2002. Petitioner Hazen Enterprises, Inc. (hereinafter Hazen) was
formed to manage certain business interests and real estate owned
by two individuals in the Town of Potsdam, St. Lawrence County,
and petitioner Trezza Realty, LLC (hereinafter Trezza) was
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created to own the real property housing those individuals'
various business interests. Trezza was certified as an empire
zone enterprise in July 2002 and Hazen was certified in April
2004. Petitioner 2255 Kenmore Avenue LLC (hereinafter Kenmore),
located in the City of Tonawanda, Erie County, was certified as
an empire zone enterprise in June 2001. Petitioners Alexander &
Catalano, LLC (hereinafter Alexander) and Melvin & Melvin, PLLC
(hereinafter Melvin), both located in Syracuse, were certified in
July 2002. Lastly, petitioner Piccolo Properties, LLC
(hereinafter Piccolo), located in the City of Auburn, Cayuga
County, was certified in June 2001.

      Each of the petitioners filed timely appeals from DED's
revocation determinations with respondent Empire Zone Designation
Board (hereinafter Board). In response, the Board did not
reverse the DED findings but, instead, determined that all
petitioners were shirt-changers, and further found that Lyell Mt.
Read, Gateway, OFP and Trezza also failed to demonstrate
compliance with the 1:1 benefit-cost test. Following the Board's
determinations, petitioners commenced separate hybrid CPLR
article 78 and declaratory judgment actions seeking, among other
things, annulment of petitioners' decertifications. Supreme
Court dismissed the petitions/complaints and this consolidated
appeal ensued.

      In order to determine whether a business enterprise should
be decertified pursuant to the 1:1 benefit-cost test, DED was
required to consider the value of wages and benefits and capital
investments set forth in each petitioner's business annual report
(hereinafter BAR) submitted each year from 2001 to 2007 (see 5
NYCRR 11.9 [c] [2]). It is not disputed that Lyell Mt. Read,
Gateway, OFP and Trezza (proceeding Nos. 1, 3, 5 and 8) each
earned tax benefits in excess of their wages, benefits and
capital investments. Lyell Mt. Read contends that, when
calculating the ratio, the Board should have considered the
extraordinary circumstance that it made investments through its
tenants by negotiating below market lease terms in an effort to
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keep its property occupied. Similarly, Gateway contends that the
Board should have considered the investments made by its tenants,
in particular, the United States Postal Service, which, at the
time of the administrative appeal, planned to employ more than
400 people. Trezza argues that its wages and investments should
have been combined with those made by Hazen and, similarly, OFP
argues that the Board should have combined its wages and
investments with those made by Sack when calculating the
benefit-cost ratio.

      In these hybrid proceedings, "this Court is limited to
determining whether [the Board's] determinations[s] . . . [were]
arbitrary and capricious and without a rational basis" (Matter of
WL, LLC v Department of Economic Dev., 97 AD3d at 29). Further,
where, as here, an agency is "'acting pursuant to its authority
and within its area of expertise[, its determination] is entitled
to judicial deference'" (id., quoting Matter of Riverkeeper, Inc.
v Johnson, 52 AD3d 1072, 1074 [2008] lv denied 11 NY3d 716
[2009]).

      It is now settled that the Board's determination to only
consider the BARs submitted by the business enterprise for the
years 2001 to 2007 was rational (see James Sq. Assoc. LP v
Mullen, 21 NY3d at 250-251; Matter of WL, LLC v Department of
Economic Dev., 97 AD3d at 29-30). Further, by regulation, DED
was only required to review and consider the wages and
investments made by the business enterprise as set forth in its
BARs and did not have to consider those made by the enterprise's
tenants or related entities (see 5 NYCRR 11.9 [c] [2]; Matter of
Hague Corp. v Empire Zone Designation Bd., 96 AD3d 1144, 1146
[2012], affd sub nom. James Sq. Assoc. LP v Mullen, 21 NY3d 233
[2013]). As such, we reject the claims by Lyell Mt. Read and
Gateway (proceeding Nos. 1 and 3) that the Board should have
considered information contained outside of the BARs when it
calculated their 1:1 benefit-cost ratios.
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      As to OFP and Trezza (proceeding Nos. 5 and 8), each
concedes that, based on the BARs that each submitted, the Board
correctly determined that each failed to meet the 1:1 benefit-
cost ratio. OFP contends that respondents should have determined
that an extraordinary circumstance exists because, when
considered with its related entity, Sack, the combined benefit-
cost ratio would be over 20:1. Trezza contends that, when
considered with its related entity, Hazen, the combined benefit-
cost ratio would exceed 11:1. In support of their arguments,
they rely on the Board's determination, set forth in its
Resolution No. 8 of 2010, that certain enterprises decertified as
shirt-changers demonstrated extraordinary circumstances because
they were "(1) a manufacturer, or an entity related to a
manufacturer, that has manufacturing operations at the
location(s) in the [e]mpire [z]one for which their certification
was revoked, [and] (2) that during [2001 to 2007] such businesses
and related entity or entities achieved, at such location(s)" at
least a 10:1 benefit-cost ratio. Where, as here, an enterprise
is decertified pursuant to the 1:1 benefit-cost test, the Board
may reverse the determination only where the enterprise submits
documentation demonstrating that DED's determination was in error
(see General Municipal Law § 959 [w]; 5 NYCRR 14.2 [b]). The
Board considers extraordinary circumstances only with respect to
an appeal of a finding that an enterprise is a shirt-changer (see
General Municipal Law § 959 [w]; 5 NYCRR 14.2 [b]). Accordingly,
the Board was not obligated to consider claims of extraordinary
circumstances with regard to DED's finding that OFP, Trezza,
Lyell Mt. Read and Gateway failed the 1:1 benefit-cost test and,
inasmuch as none of these business enterprises submitted
documentation to demonstrate any error, we find that the Board's
determination to revoke their certificates based on the 1:1
benefit-cost test had a rational basis.1


     1
        Having found that the Board's determination to revoke the
certifications of Lyell Mt. Read, Gateway, OFP and Trezza had a
rational basis, we decline to consider their arguments with
regard to the Board's determination that each enterprise was a
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      Turning to the Board's determinations with regard to the
shirt-changer test, Lyell BSC, Melvin and Alexander (proceeding
Nos. 4, 6 and 9) they concede that they were shirt-changers as
defined by the statute and regulations. The statute and
regulations permit the Board to reverse a DED determination
revoking a business enterprise's certification on the shirt-
changer test where "any extraordinary circumstances occurred
which would justify the continued certification of the business
enterprise" (General Municipal Law § 959 [w]; accord 5 NYCRR
§ 14.2 [b]). The phrase "extraordinary circumstances" is not
defined in the statute or regulations, but the record indicates
certain instances where respondents found that a shirt-changer
did demonstrate extraordinary circumstances. For example, in
addition to Resolution No. 8 of 2010 – cited by OFP and Trezza –
the Board reinstated certifications for shirt-changer business
enterprises that met their investment goals as set forth in their
original applications and also (1) achieved at least a 20:1
benefit-cost ratio based on their 2001 to 2007 BARs (Resolution
No. 5. of 2010), (2) were located in a medically underserved area
(Resolution No. 10 of 2010) or (3) made capital investments in
their empire zone property of at least $10 million (Resolution
No. 7 of 2010). The Board also determined that extraordinary
circumstances warranting reinstatement existed where shirt-
changer business enterprises constructed new facilities for
specific tenants in the empire zone that created at least 100
jobs (Resolution No. 6 of 2010), and also for enterprises that
invested at least $5 million toward redevelopment or reuse of
their empire zone property during 2001 to 2007 (Resolution No. 9
of 2010).

      In general, if an administrative agency does not follow its
own precedent when faced with similar facts, its determination
will be deemed to be arbitrary and capricious unless it explains
its departure from such precedent (see Matter of Terrace Ct., LLC
v New York State Div. of Hous. & Community Renewal, 18 NY3d 446,


shirt-changer.
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453 [2012]). Here, with reference to the aforementioned
examples, Melvin contends that it demonstrated extraordinary
circumstances because it transferred employees and assets from a
related entity for a valid business purpose, the merger was not
considered to be disqualifying when it was completed in 2002 and
it is located in an area that it characterizes as notoriously
undesirable. Similarly, Alexander concedes that it was formed in
June 2002 by merger with a limited liability partnership that had
been in existence since 1996, but it contends that it was formed
for a valid business purpose and that it contributes to the
economy in downtown Syracuse. Lyell BSC contends that its
transfer of certain properties in 2003 from a related entity
(formed in 1998) was an extraordinary circumstance because the
two sole members of Lyell BSC and the transferring entity would
have received the same program benefits if the transfer had not
occurred.

      There is no dispute that, by the plain language of the
statute, Alexander, Melvin and Lyell BSC were each entities that
could properly be deemed shirt-changers. None, however,
presented arguments that established that they fell squarely
within those circumstances that the Board had deemed to be
extraordinary, and, generally, this Court may not weigh or
consider the arguments presented and substitute its own judgment
for that of the Board (see Matter of Nehorayoff v Mills, 95 NY2d
671, 675 [2001]). While the Board determinations decertifying
these entities were not detailed, we are unable to conclude that
they were irrational. As the Empire Zones Program was originally
enacted to address "severe conditions" in "areas characterized by
persistent and pervasive poverty," and to "promote development of
new businesses [and] the expansion of existing businesses"
(General Municipal Law § 956), it is therefore typical, not
extraordinary, that Alexander and Melvin are located in
impoverished areas. As to the argument by Lyell BSC and Melvin
that the entities were formed for a "valid business purpose"
pursuant to the Tax Law (see Tax Law § 14 [j] [4] [B]), this
language was added to the Tax Law in 2005 to provide that, where
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a business enterprise had been certified pursuant to the Empire
Zones Program and was similar in operation and ownership to an
existing entity or entitites subject to certain taxes, it could
be a "new business" and therefore deemed a "qualified empire zone
enterprise" for purposes of the Tax Law, so long as the entity
was formed for a valid business purpose (Tax Law § 14 [a]; [j]
[4] [B]; L 2005, ch 63, part A § 5).2 The issue here, however,
is distinct and limited to whether the Board properly allowed the
enterprises to be decertified pursuant to the definition of
shirt-changer after DED conducted its review as set forth in the
2009 legislation (see General Municipal Law § 959 [w]; L 2009,
ch 57, part S-1, § 3). Contrary to the arguments made by Melvin
and Lyell BSC, a determination that an entity was formed for a
valid business purpose pursuant to Tax Law § 14 is not analogous
to a finding that a business enterprise was not a shirt-changer
pursuant to General Municipal Law § 959 (a) (v) (5). Similarly,
based on the plain language of the statute, we discern no basis
to conclude that it was irrational for the Board to reject Lyell
BSC's claim that extraordinary circumstances existed because it
accepted the transfer of real property from another entity that
was a certified business enterprise.

      Hazen (proceeding No. 7) argues that it is not a
shirt-changer and that, even if it was, the Board should have


    2
        The term valid business purpose is defined as "one or
more business purposes, other than the avoidance or reduction of
taxation, which alone or in combination constitute the primary
motivation for some business activity or transaction, which
activity or transaction changes in a meaningful way, apart from
tax effects, the economic position of the taxpayer. The economic
position of the taxpayer includes an increase in the market share
of the taxpayer, or the entry by the taxpayer into new business
markets" (Tax Law § 208 [9] [o] [i] [D]). An entity must be both
certified pursuant to General Municipal Law article 18-b and
qualified pursuant to the Tax Law to obtain certain exemptions
(see Tax Law § 14 [a] [2]).
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determined that it demonstrated extraordinary circumstances
warranting its reinstatement. It is not disputed that Hazen was
initially formed in 1999, merged with seven related entities in
January 2000 and was certified as a empire zone enterprise in
April 2000. Hazen argues that the Board should have considered
that the transfers were permitted at the time that they were
made, prior to the enactment of the expanded program and the
enactment of the 2009 legislation. We disagree. As is clear
from the statute, DED was directed to review an existing business
enterprise that had been certified for the first time prior to
August 1, 2002 to determine whether it was a shirt-changer (see
General Municipal Law § 959 [a] [v] [5]; [w]). That the standard
is applicable to business activities occurring prior to the
effective date of the statute "does not render that statute
'retroactive' in any true sense of that term" (Forti v New York
State Ethics Commn., 75 NY2d 596, 609 [1990]). Indeed, Hazen and
those similarly situated were decertified prospectively, and it
is clear that the Legislature intended that such entities would
be affected by the policy change (see Matter of Talisman Energy
USA, Inc. v New York State Dept. of Envtl. Conservation, 113 AD3d
902, 904 [2014]). Moreover, even if Hazen demonstrated a
benefit-cost ratio in excess of 20:1, because the record
indicates that Hazen did not meet its original investment goals,
we find that it was rational for the Board to distinguish and
exclude Hazen from those enterprises recertified pursuant to
Resolution No. 5 of 2010.

      Piccolo (proceeding No. 10), formed in May 2001, does not
dispute that it accepted the transfer of real property from
Anthony Piccolo and was certified as an empire zone enterprise in
June 2001.3 The crux of Piccolo's argument is that the Board's
determination to revoke its certification pursuant to General
Municipal Law § 959 (a) (v) (5) contravenes the statutory
language because it accepted transfers from an individual, not an


     3
        Piccolo did not present any evidence of the alleged
"arms-length" transactions to the Board.
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"entity." Generally, this Court will defer to an agency's
interpretation of statutory language when such interpretation
"requires the agency's expertise in the matters covered by the
statute" (Matter of Kent v Cuomo, 124 AD3d 1185, 1186 [2015]).
Although deference is not warranted "when 'the question is one of
pure statutory reading and analysis, dependent only on accurate
apprehension of legislative intent'" (id., quoting Kurcsics v
Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]), it is
"appropriate where the question is one of specific application of
a broad statutory term" (Matter of County of Albany v Hudson
Riv.-Black Riv. Regulating Dist., 97 AD3d 61, 67 [2012], lv
denied 19 NY3d 816 [2012] [internal quotation marks and citation
omitted]). In our view, because the issue presented requires the
application of the term "entity" to the specific information
provided by Piccolo within the context of the program that
respondents are obligated to administer, its interpretation is
entitled to deference so long as it is rational (see Matter of
Kent v Cuomo, 124 AD3d at 1187).

      Insofar as is relevant to Piccolo's argument, a shirt-
changer is a "business enterprise . . . [that] caused individuals
to transfer from existing employment with another business
enterprise" or an "enterprise [that] acquired, purchased, leased,
or had transferred to it real property previously owned by an
entity with similar ownership, regardless of form of
incorporation or organization" (General Municipal Law § 959 [a]
[v] [5]). Black's Law Dictionary defines the term "entity" as
"[a]n organization . . . that has a legal identity apart from its
members" (Black's Law Dictionary 573 [8th ed 1999]). Similarly,
the term is ordinarily defined as "being, existence; especially:
independent, separate, or self-contained existence" (Merriam-
Webster Online Dictionary, http://www.merriam-webster.com/
dictionary/entity [accessed Apr. 6, 2015]). When we consider the
generally broad definition of entity, that the Legislature
further expanded the term by the phrase "regardless of form of
incorporation or organization" (General Municipal Law § 959 [a]
[v] [5]), and that the statute and 2009 amendments were intended
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only to promote and continue to certify participants that made
actual, not apparent, new investments in the empire zones, we
conclude that the Board's determination to construe "entity" as
including transfers from individuals was a rational
interpretation of the statute (General Municipal Law § 956; see
James Sq. Assoc. LP v Mullen, 21 NY3d at 251). Further, for the
reasons explained with regard to Alexander and Melvin above, we
find that it was rational for the Board to determine that
Piccolo's activities in an economically distressed area were not
extraordinary circumstances.

      We decline to defer to the Board's determinations with
regard to Kenmore and Sack (proceeding Nos. 2 and 11). Kenmore
was decertified as a shirt-changer because it hired an employee
from a related enterprise. Before the administrative appeal,
Kenmore presented evidence that the employee had been employed by
the related enterprise but was terminated in May 2002. Kenmore
hired the employee in October 2002. As Kenmore presented
undisputed evidence that the employee did not "transfer from
existing employment" (General Municipal Law § 959 [a] [v] [5]),
we agree with Kenmore that the Board's determination that it was
a shirt-changer based on this event was not rational. Sack
concedes that it was a shirt-changer, but presented evidence to
the Board that it made investments far in excess of its original
goals and that its benefit-cost ratio was in excess of 20:1.
Accordingly, the Board should have determined that extraordinary
circumstances existed to revoke Sack's decertification (see
Resolution No. 5 of 2010).

      Finally, we find that Supreme Court should have granted all
petitions to the extent that each sought a declaration that the
retroactive application of the decertifications was improper (see
James Sq. Assoc. LP v Mullen, 21 NY3d at 250). Otherwise, the
court properly dismissed petitioners' declaratory judgment
actions. Petitioners did not demonstrate that they had a
property right to continued receipt of benefits and each received
the process it was due (see Matter of WL, LLC v Department of
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Economic Dev., 97 AD3d at 32; Matter of Hague Corp. v Empire Zone
Designation Bd., 96 AD3d at 1147; Matter of Morris Bldrs., LP v
Empire Zone Desigation Bd., 95 AD3d 1381, 1383-1384 [2012], affd
sub nom. James Sq. Assoc. LP v Mullen, 21 NY3d 233 [2013]). As
to their equal protection claims, no petitioner is a member of a
protected class, nor, as set forth herein, do we find that any
demonstrated that "they were treated differently from similarly
situated entities due to a malicious or bad faith intent to
injure on the part of respondents" (Matter of Loudon House LLC v
Town of Colonie, 123 AD3d 1406, 1409 [2014] [internal quotation
marks and citation omitted]).

      We have considered petitioners' remaining arguments and, to
the extent that they have not been rendered academic, we find
that they are without merit.

     Garry, J.P., Egan Jr. and Clark, JJ., concur.



      ORDERED that the judgments in proceeding Nos. 1, 3, 4, 5,
6, 7, 8, 9 and 10 are modified, on the law, without costs, by
reversing so much thereof as dismissed that part of said
petitions/complaints as sought a declaration that the April 2009
amendments to General Municipal Law § 959 may not be applied
retroactively to January 1, 2008; said petitions/complaints
granted to that extent and it is declared that said amendments
shall be applied prospectively; and, as so modified, said
judgments affirmed.
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      ORDERED that the judgments in proceeding Nos. 2 and 11 are
reversed, on the law, without costs, petitions/complaints granted
and it is declared that the April 2009 amendments to General
Municipal Law § 959 shall be applied prospectively.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
