                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     518992
________________________________

In the Matter of HANGAIR, LLC,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
KATHERINE HILLOCK, as
   Assessor of the Town of
   Johnstown, et al.,
                    Respondents.

(And Another Related Proceeding.)
________________________________


Calendar Date:   January 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


     Garth J. Slocum, Ghent, for appellant.

     David R. Murphy, Latham, for respondents.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Aulisi, J.),
entered June 25, 2013 in Fulton County, which, in two proceedings
pursuant to RPTL article 7, among other things, granted
respondents' motion for partial summary judgment dismissing
petitioner's claim that it is entitled to a real property tax
exemption.

      Petitioner executed a 25-year lease agreement with Fulton
County that enabled it to construct and operate a 10-unit
airplane hangar on a parcel of the County-owned airport. The
hangar had been exempted from real property taxation until
respondent Katherine Hillock, the assessor for respondent Town of
                              -2-                518992

Johnstown, added the hangar to the Town's tax assessment rolls
for 2011 and 2012. Petitioner's complaints challenging the
assessments for both years were denied by respondent Town of
Johnstown Board of Assessment Review. As a result, petitioner
commenced these special proceedings pursuant to RPTL article 7
seeking, among other things, a declaration that the hangar is tax
exempt pursuant to RPTL 406 (1) as a property that was open and
available for use by the general public. Respondents moved for
partial summary judgment dismissing petitioner's claim that it
was entitled to a tax exemption. Supreme Court granted the
motion and petitioner appeals. We affirm.

      Where, as here, a municipality decides to eliminate a
previously granted tax exemption, it has the burden of "'proving
that the real property is subject to taxation'" (Matter of
Lackawanna Community Dev. Corp. v Krakowski, 12 NY3d 578, 581
[2009], quoting Matter of New York Botanical Garden v Assessors
of Town of Washington, 55 NY2d 328, 334 [1982]; accord Matter of
Pine Harbour, Inc. v Dowling, 89 AD3d 1192, 1193 [2011]). Faced
with the burden of demonstrating that petitioner was not eligible
for an exemption inasmuch as the hangar, as is relevant here, was
not "held for a public use" (RPTL 406 [1]), respondents had to
show that the hangar was not "'occupied, employed, or availed of,
by and for the benefit of the community at large'" (Town of
Harrison v County of Westchester, 13 NY2d 258, 263 [1963],
quoting County of Herkimer v Village of Herkimer, 251 App Div
126, 128 [1937], affd 279 NY 560 [1939]).1 That a private
corporation "derives a benefit or that [a] county has leased the
property to a private party does not by itself defeat the
exemption" (Matter of County of Clinton v Drollette, 6 AD3d 968,
970 [2004], lv denied 3 NY3d 606 [2004] [internal quotation marks
and citation omitted]). A determination that a parcel is exempt
from real property taxation turns on whether it has a "'public
use' . . . that enhances the health, education, safety, or
welfare of the residents of the municipality" (id. at 970


    1
        Respondents do not dispute that Fulton County is the
beneficial owner of the hangar (compare Matter of Spectapark
Assoc. v City of Albany Dept. of Assessment & Taxation, 12 AD3d
800, 801 [2004], lv denied 4 NY3d 705 [2005]).
                              -3-                518992

[internal quotation marks, citation and emphasis omitted]).

      The record reveals that the hangar is locked at all times
and is not accessible to members of the general public; access to
the bays is strictly limited to petitioner's three members and
parties who execute rental agreements with petitioner. John
Eisler, a member of petitioner, averred that he and another
founding member occupy two bays of the hangar and that a corner
office within the hangar is rented to a flight instructor for a
monthly fee. The remaining bays are occupied by private lessees
who are given keys to unlock and gain access to their respective
units. These lessees use the hangar to store their privately
owned aircraft, none of which provide charter flights or other
public services. While petitioner insists that the hangar is
completely accessible to the general public, that the bays may be
rented by any individual who requires storage space for a
privately owned airplane does not warrant a finding that the
hangar is being used to serve "the general public or for any
other purpose redounding to the benefit or advantage of the
general community" (Town of Harrison v County of Westchester, 13
NY2d at 263).

      Petitioner emphasizes that a bay in the hangar may be used
to provide shelter to a non-lessee airplane during periods of
inclement weather; however, such emergency access would be
dictated by availability, namely, when a tenant aircraft has
temporarily vacated its bay. Therefore, "this occasional public
use is no more than incidental to the tenant's use" and fails to
qualify as a public use as contemplated by RPTL 406 (1) (Matter
of Chemung County v Hartman, 24 AD2d 1063, 1063 [1965]). The
record overwhelmingly supports Supreme Court's determination that
the hangar was not serving members of the general community, but,
rather, existed to benefit a few private individuals, thereby
justifying the elimination of petitioner's tax exempt status.

      Petitioner's remaining arguments have been considered and
found to be unavailing.

     Lahtinen, J.P., Egan Jr. and Lynch, JJ., concur.
                        -4-                  518992

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
