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

906
CA 13-00083
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


VILLAGE OF LOWVILLE,
PLAINTIFF-PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF LEWIS,
DEFENDANT-RESPONDENT-RESPONDENT.


HRABCHAK, GEBO & LANGONE, P.C., WATERTOWN (MARK G. GEBO OF COUNSEL),
FOR PLAINTIFF-PETITIONER-APPELLANT.

RICHARD J. GRAHAM, COUNTY ATTORNEY, LOWVILLE, FOR DEFENDANT-
RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated memorandum decision and
order) of the Supreme Court, Lewis County (Hugh A. Gilbert, J.),
entered August 10, 2012. The judgment, among other things, dismissed
the complaint-petition.

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

     Memorandum: As limited by its notice of appeal, plaintiff-
petitioner (plaintiff) appeals from that part of a judgment denying
plaintiff’s request for specific performance of a tax exemption
agreement, as asserted in the second cause of action, and dismissing
the complaint-petition. We note at the outset that, although
plaintiff also sought a declaration, Supreme Court properly did not
grant such relief where, as here, plaintiff “has an adequate,
alternative remedy in another form of action, such as breach of
contract” (Apple Records v Capitol Records, 137 AD2d 50, 54).

     In 1998 the parties executed a written agreement (Exemption
Agreement) in which defendant-respondent (defendant) agreed to grant
plaintiff a tax exemption for its water treatment facility property
pursuant to RPTL 406 (3). The Exemption Agreement provided that
plaintiff would receive a tax exemption for “so long as the [water
treatment facility property] is used for a public purpose satisfying
the requirements of [RPTL 406].” The Exemption Agreement further
provided that an amendment to RPTL 406 (3), some “other legislative
change,” or a final court order subjecting the property to taxation
shall modify the obligations of the parties to comply with such
amendment, legislative change or court order. In 2011, after
conducting a study of its tax exemption policies, defendant’s Board of
                                 -2-                           906
                                                         CA 13-00083

Legislators (County Board) passed a resolution (2011 resolution) to
phase out all tax exemptions for municipal water and sewage treatment
facilities, including the tax exemption with respect to plaintiff’s
facility under the Exemption Agreement. In 2012, the County Board
voted on a resolution that would grant an exemption solely to
plaintiff while continuing to phase out the exemptions for all other
municipalities, but the resolution did not pass.

     With respect to plaintiff’s cause of action for specific
performance of the Exemption Agreement, we agree with the court that
the County Board’s adoption of the 2011 resolution phasing out all tax
exemptions for municipal water and sewage treatment facilities
constituted a “legislative change” within the meaning of the Exemption
Agreement. The County Board is a legislative body that exercises
defendant’s power “through a local law or resolution duly adopted by
the board” (County Law § 153 [1]; see § 150-a [1]), and the Exemption
Agreement specifically provides that a legislative change shall modify
the obligations of the parties to comply with such legislative change.
We therefore affirm the judgment insofar as appealed from.




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
