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

559
CA 12-01418
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF GENEVA GENERAL HOSPITAL,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ASSESSOR OF TOWN OF GENEVA, TOWN OF GENEVA,
BOARD OF ASSESSMENT REVIEW OF TOWN OF GENEVA,
COUNTY OF ONTARIO AND GENEVA CITY SCHOOL
DISTRICT, RESPONDENTS-RESPONDENTS.


HINMAN, HOWARD & KATTELL, LLP, BINGHAMTON (PAUL T. SHEPPARD OF
COUNSEL), FOR PETITIONER-APPELLANT.

THE WOLFORD LAW FIRM LLP, ROCHESTER (LEA T. NACCA OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS ASSESSOR OF TOWN OF GENEVA, TOWN OF GENEVA AND
BOARD OF ASSESSMENT REVIEW OF TOWN OF GENEVA.


     Appeal from an order of the Supreme Court, Steuben County (Joseph
W. Latham, A.J.), entered May 22, 2012 in a proceeding pursuant to
CPLR article 78 and RPTL article 7. The order granted the motion of
respondents Assessor of the Town of Geneva, Town of Geneva, and Board
of Assessment Review of Town of Geneva to dismiss the proceeding.

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

     Memorandum: Petitioner commenced this hybrid CPLR article 78 and
RPTL article 7 proceeding in order to challenge a 2011 property tax
assessment in which it was denied a tax exemption with respect to a
parcel of property it owns in the Town of Geneva, which property is
located in a rural area south of its main hospital. The order
appealed from granted the motion to dismiss the amended petition made
by the Assessor of the Town of Geneva, the Town of Geneva, and the
Board of Assessment Review of the Town of Geneva (respondents). As a
preliminary matter, we note that respondents’ assertion that certain
contentions made by petitioner on appeal are unpreserved for our
review lacks merit inasmuch as those contentions were adequately
raised in Supreme Court. Nevertheless, we conclude that the court
properly granted respondents’ motion and dismissed the amended
petition. We therefore affirm.

     We reject petitioner’s contention that the court erred by
dismissing its amended petition insofar as it asserted claims pursuant
to CPLR article 78. Article 7 of the RPTL “is the exclusive procedure
                                 -2-                           559
                                                         CA 12-01418

for review of property [tax] assessments ‘unless otherwise provided by
law’ ” (Niagara Mohawk Power Corp. v City Sch. Dist. of City of Troy,
59 NY2d 262, 268, quoting RPTL 700 [1]). Moreover, it is well settled
that “proceeding[s] pursuant to CPLR article 78 [are] not the proper
vehicle[s] for challenging the tax assessment[s], inasmuch as
challenges to assessments on the grounds that they are illegal,
irregular, excessive, or unequal[ ] are to be made in a certiorari
proceeding under RPTL article 7” (Matter of ViaHealth of Wayne v
VanPatten, 90 AD3d 1700, 1701 [internal quotation marks omitted]; see
Matter of Board of Mgrs. of Greens of N. Hills Condominium v Board of
Assessors of County of Nassau, 202 AD2d 417, 419, lv denied 83 NY2d
757). Unless the party challenging the tax assessment is asserting
that “ ‘the taxing authority acted entirely without jurisdiction or
that the tax itself is unconstitutional,’ ” which is not the case
here, “ ‘the sole vehicle for review of a tax assessment is pursuant
to [RPTL] article 7’ ” (Matter of AES Somerset, LLC v Town of
Somerset, 24 AD3d 1263, 1264; see Samuels v Town of Clarkson, 91 AD2d
836, 837; see also County of Erie v Danitz, 100 AD2d 725, 725-726).

     Petitioner further contends that respondents could not base their
denial of a tax exemption for the subject parcel on the ground that
petitioner’s use of the property was in violation of the existing
zoning restrictions because, inter alia, it had never been cited for
or given notice of a zoning violation. We reject that contention.
The fact that petitioner used the subject property for “hospital
purposes” as that term is used in the RPTL is not contested (RPTL
420-a [5]). Nevertheless, a property owner who uses its property for
exempt purposes in violation of an applicable zoning law is prohibited
from receiving a tax exemption pursuant to RPTL 420-a (see
Congregation Or Yosef v Town of Ramapo, 48 AD3d 731, 732, lv denied 10
NY3d 711; Matter of Colella v Board of Assessors of County of Nassau,
266 AD2d 286, 287, revd on other grounds 95 NY2d 401; see also McGann
v Incorporated Vil. of Old Westbury, 293 AD2d 581, 584, appeal
dismissed 98 NY2d 728, reconsideration denied 99 NY2d 532). It is
immaterial whether petitioner had prior knowledge of the zoning
violation. “ ‘Tax exemptions . . . are limitations of sovereignty and
are strictly construed . . . If ambiguity or uncertainty occurs, all
doubt must be resolved against the exemption’ ” (Matter of City of
Lackawanna v State Bd. of Equalization & Assessment of State of N.Y.,
16 NY2d 222, 230; see People v Brooklyn Garden Apts., 283 NY 373,
380). Thus, a zoning violation is a bar to receiving the benefit of a
tax exemption even in the absence of an administrative finding, a
citation, or the property owner’s knowledge of such a violation.
Here, the record establishes that the subject parcel was not zoned for
hospital uses in the 2011 tax year, which provided respondents with a
lawful basis on which to deny petitioner a tax exemption. We have
considered petitioner’s other contentions in support of its assertion
that it was entitled to a property tax exemption for the subject
parcel for the 2011 tax year and find them to be without merit.


Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
