                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 26, 2015                    518597
________________________________

In the Matter of THE CHURCH AID
   OF THE PROTESTANT EPISCOPAL
   CHURCH IN THE TOWN OF
   SARATOGA SPRINGS, INC.,
   Doing Business as HOME OF
   THE GOOD SHEPHERD,
                    Respondent-              MEMORANDUM AND ORDER
                    Appellant,
      v

TOWN OF MALTA ASSESSOR et al.,
                    Appellants-
                    Respondents.
________________________________


Calendar Date:    January 13, 2015

Before:    Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                              __________


      Hacker Murphy, LLP, Latham (David R. Murphy of counsel),
for appellants-respondents.

      Hiscock & Barclay, LLP, Albany (Mark D. Lansing of
counsel), for respondent-appellant.

                              __________


Rose, J.

      Cross appeals from an order of the Supreme Court (Nolan
Jr., J.), entered October 1, 2013 in Saratoga County, which, in a
combined proceeding pursuant to CPLR article 78 and RPTL article
7, among other things, denied respondents' motion for summary
judgment dismissing the petition.
                              -2-                518597

      Petitioner, which operates an assisted living facility in
the Town of Malta, Saratoga County, commenced this hybrid
proceeding pursuant to CPLR article 78 and RPTL article 7 seeking
a determination that it is, among other things, a charitable
organization and that its facility is entitled to a real property
tax exemption pursuant to RPTL 420-a because it is used
principally for charitable purposes. After joinder of issue and
discovery, the parties cross-moved for summary judgment. Finding
issues of fact as whether petitioner's facility qualified as
charitable so as to be tax exempt under RPTL 420-a, Supreme Court
denied the motions. The parties cross-appeal and we affirm.

      The "critical factor" in determining whether a facility
used for housing the elderly qualifies for an exemption by virtue
of being "charitable" is whether the facility subsidizes rent or
charges less than fair market rental rates (Matter of Pine
Harbour, Inc. v Dowling, 89 AD3d 1192, 1194-1195 [2011] [internal
quotation marks and citation omitted]). Consideration is given
to whether the facility retains the ability to terminate a
resident's lease for nonpayment, whether residents are charged
for supplemental services and the number of residents who are
dependent on government benefits (see id. at 1195; Matter of Lake
Forest Senior Living Community, Inc. v Assessor of the City of
Plattsburgh, 72 AD3d 1302, 1304-1305 [2010]; see also Matter of
TAP, Inc. v Dimitriadis, 49 AD3d 947, 948 [2008]). Simply
providing housing for elderly low-income individuals does not
constitute a charitable purpose (see Matter of Adult Home at Erie
Sta., Inc. v Assessor & Bd. of Assessment Review of City of
Middletown, 10 NY3d 205, 214 [2008]; Matter of Pine Harbour, Inc.
v Dowling, 89 AD3d at 1194; Matter of Lake Forest Senior Living
Community, Inc. v Assessor of the City of Plattsburgh, 72 AD3d at
1305).

      In support of its motion for summary judgment, petitioner
relies on information demonstrating that the rates it charges to
residents are below rates charged by other facilities in the
area. Respondents assert, however, that petitioner is comparing
itself to residential health care facilities that provide more
extensive care. Respondents also point to evidence that not all
residents at petitioner's facility are charged the lower rate
that petitioner relies on as being "below market" and that,
                              -3-                  518597

despite petitioner's claim that it does not charge for
supplemental services, it will require residents who are in need
of advanced services to pay for their own nursing care in order
to continue their residencies. Moreover, evidence in the record
reveals that the percentage of the facility's current residents
who receive government benefits is small. While petitioner
relies on its general policy that residents who have exhausted
their savings and are unable to pay will nevertheless be able to
remain at the facility, respondents note the lack of any
admission agreement including such a clause. Given these issues
of fact with respect to the relevant criteria for determining
whether petitioner's facility qualifies as "charitable" under
RPTL 420-a (1) (a), the cross motions for summary judgment were
properly denied (see Matter of TAP, Inc. v Dimitriadis, 49 AD3d
at 948-949; see also Matter of Miriam Osborn Mem. Home Assn. v
Assessor of City of Rye, 275 AD2d 714, 715-716 [2000]). The
parties' remaining contentions have been considered and found to
be unavailing.

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



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
