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

1034
CA 15-00213
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


GREECE TOWN MALL, L.P., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DENNIS M. MULLEN, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF ECONOMIC DEVELOPMENT,
DEFENDANT-RESPONDENT.


FEERICK LYNCH MACCARTNEY, ESQS., SOUTH NYACK (DENNIS E.A. LYNCH OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Monroe County (J. Scott Odorisi, J.), entered April 7,
2014 in a declaratory judgment action. The judgment, inter alia,
granted the cross motion of plaintiff for partial summary judgment on
the first cause of action of the first amended complaint.

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

     Memorandum: In this declaratory judgment action, plaintiff
asserted eight causes of action, only the first of which is at issue
on appeal. As relevant here, in 1986, the Legislature passed the New
York State Empire Zones Act (General Municipal Law § 955 et seq.),
which provides, inter alia, certain tax and utility cost reductions to
eligible businesses. Plaintiff operates the “Greece Town Mall” and,
in 2002, it proposed an economic development plan for that facility
under the Empire Zones Act. In August 2003, plaintiff was duly
certified as an Empire Zone business enterprise by New York State,
retroactive to July 31, 2002. In 2009, the Legislature amended the
Empire Zones Act, requiring, inter alia, that defendant conduct a
review of all business enterprises to determine whether they should be
decertified. Later in 2009, defendant revoked plaintiff’s
certification, retroactively effective to January 1, 2008.

     Plaintiff’s first cause of action in the first amended complaint
alleged that defendant “violated lawful procedure in adopting
regulations that were inconsistent with the Empire Zone Act . . . with
regard to the across the board retroactive date of decertification of
January 1, 2008 . . . regarding the 2009 Amendment to the Empire
Zone.” Defendant moved for partial summary judgment dismissing the
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                                                         CA 15-00213

eighth cause of action and, in doing so, conceded that plaintiff was
entitled to relief on the first cause of action. Plaintiff thereafter
cross-moved for partial summary judgment on the first cause of action,
stating that “the concession by [d]efendant for relief in
[p]laintiff’s [f]irst [c]ause of [a]ction compels th[e] [c]ourt to
grant [s]ummary [j]udgment declaring that any retroactive revocation
of the [p]laintiff’s Empire Zone Program benefits is illegal and that
the [p]laintiff is entitled to have those benefits continued through
2015.” Supreme Court granted plaintiff’s cross motion “as acquiesced
by the [d]efendant” and requested that plaintiff provide a proposed
“order and judgment” (hereafter, judgment). Plaintiff’s proposed
judgment provided, inter alia, that “the retroactive decertification
of the [p]laintiff from the Empire Zone Program is hereby declared
illegal, invalid, null and void and that the [p]laintiff be reinstated
to all rights and benefits in the Empire Zone Program through August
31, 2010.” Defendant submitted an affirmation in opposition to
plaintiff’s proposed judgment and provided its own proposed judgment,
which “declared that [d]efendant’s . . . determination dated June 29,
2009 that revoked the [p]laintiff’s Empire Zone Program certification
cannot be retroactive to January 1, 2008.” The court executed
defendant’s proposed judgment.

     Plaintiff contends that defendant “acquiesced” to its request for
relief in the first cause of action, “which sought continued Empire
Zone benefits through 2015.” We reject that contention. In the
attorney affirmation accompanying the motion, defendant’s attorney
acknowledged only that, pursuant to the holding of James Sq. Assoc. LP
v Mullen (21 NY3d 233), the subject 2009 amendment was not to be
applied retroactively, and he therefore conceded that judgment in
favor of plaintiff was warranted on the first cause of action.
Defendant did not concede that plaintiff would be entitled to
continued Empire Zone benefits through 2015, and defendant did not
discuss, even in more general terms, any relief to which plaintiff
might be entitled under the first cause of action. More importantly,
as we have noted above, the gravamen of the first cause of action is
the retroactive date of decertification of January 1, 2008, and
plaintiff did not plead that the improper retroactive decertification
entitles it to continued Empire Zone benefits through 2015. Moreover,
plaintiff’s proposed judgment did not recite that plaintiff is
entitled to benefits through 2015. “Even assuming, arguendo, that we
may decide this appeal on a legal theory not expressly raised in the
complaint” (South Buffalo Dev., LLC v PVS Chem. Solutions, Inc., 115
AD3d 1152, 1153), we conclude that plaintiff’s claim that it was
entitled to the “continued benefit of the Empire Zone Program through
2015” is without merit inasmuch as plaintiff does not have a “vested
right to continue receiving tax credits” (Matter of Greece Town Mall,
L.P. v New York State, 105 AD3d 1298, 1300).

     We have examined plaintiff’s remaining contention and conclude
that it is without merit.

Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
