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

1453
CA 11-01152
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF VIAHEALTH OF WAYNE,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAWN VANPATTEN, ASSESSOR FOR TOWN OF SODUS,
AND TOWN OF SODUS, RESPONDENTS-APPELLANTS.


ANTHONY J. VILLANI, P.C., LYONS (ANTHONY J. VILLANI OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

HISCOCK & BARCLAY, LLP, ROCHESTER (JAMES S. GROSSMAN OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Wayne County (Kenneth
R. Fisher, J.), entered August 18, 2010 in proceedings pursuant to
RPTL article 7 and CPLR article 78. The order, among other things,
granted in part petitioner’s motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by dismissing the petitions insofar as
they seek relief pursuant to CPLR article 78 and denying those parts
of petitioner’s motion for summary judgment determining that
petitioner is entitled to tax-exempt status for the portions of its
property leased by Finger Lakes Migrant Health Care Project, Inc.,
Wayne County Rural Health Network and Rushville Health Center and as
modified the order is affirmed without costs.

     Memorandum: Petitioner, a not-for-profit corporation, commenced
these consolidated proceedings pursuant to RPTL article 7 and CPLR
article 78 seeking review of the tax assessments over several years on
petitioner’s property located in respondent Town of Sodus (Town).
Respondents appeal from an order that, inter alia, granted those parts
of petitioner’s motion for summary judgment determining that
petitioner was entitled to tax-exempt status for the portions of its
property that were used for X ray and laboratory services operated by
petitioner and that were leased by Wayne Medical Group, which is a
division of Rochester General Hospital (RGH), Finger Lakes Migrant
Health Care Project, Inc. (FLMHC), Wayne County Rural Health Network
(WCRHN) and Rushville Health Center (Rushville). We note at the
outset 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
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                                                         CA 11-01152

proceeding under RPTL article 7’ ” (Matter of Cayuga Grandview Beach
Coop. Corp., v Town Bd. of Town of Springport, 51 AD3d 1364, 1364, lv
denied 11 NY3d 702). We therefore modify the order by dismissing the
petitions insofar as they seek relief pursuant to CPLR article 78.

     Pursuant to RPTL 420-a (1) (a), real property owned by a
corporation organized exclusively for hospital purposes is exempt from
taxation when the property is “used exclusively” for such purposes.
Subdivision (2) of that statute further provides that, “[i]f any
portion of such real property is not so used exclusively . . . but is
leased or otherwise used for other purposes, such portion shall be
subject to taxation and the remaining portion only shall be exempt . .
. .” Petitioner had the initial burden of demonstrating that it was
established exclusively for hospital purposes and that the portions of
property at issue were used exclusively for those purposes (see Matter
of Genesee Hosp. v Wagner, 47 AD2d 37, 43, affd 39 NY2d 863). “The
issue in determining the taxable status of property is ‘whether the
nature of its primary activities is consistent with an exempt
purpose’ ” (Matter of Lackawanna Community Dev. Corp. v Krakowski, 50
AD3d 1469, 1470, affd 12 NY3d 578; see also Congregation Rabbinical
Coll. of Tartikov, Inc. v Town of Ramapo, 17 NY3d 763, 764; Matter of
Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc. v Department of
Envtl. Protection of City of N.Y., 11 NY3d 327, 335).

     We reject respondents’ contention that Supreme Court erred in
granting those parts of petitioner’s motion with respect to the
portions of the property leased by RGH and used for X ray and
laboratory services. Petitioner established that RGH and petitioner
are not-for-profit corporations organized exclusively for hospital
purposes and that they are using the property exclusively for those
purposes (see generally Genesee Hosp., 47 AD2d at 43-45). Where
property is being used in support of a general hospital for various
outpatient services and care, such as the services provided here by
the physicians and staff of RGH and by petitioner’s X ray units and
laboratories, the property is tax exempt inasmuch as those services
fulfill primary hospital purposes (see Genesee Hosp., 47 AD2d at 46-
47). Although there is no general hospital on the property at issue,
as there was in Matter of Genesee Hosp., the relevant portion of the
property is used and operated as an extension clinic by RGH, which
operates a not-for-profit hospital. We therefore conclude that
petitioner established its entitlement to judgment as a matter of law
with respect to the portions of property leased by RGH and used for X
ray and laboratory services, and respondents failed to raise a triable
issue of fact in opposition (see generally Zuckerman v City of New
York, 49 NY2d 557, 562).

     We agree with respondents, however, that the court erred in
granting petitioner’s motion with respect to the portions of its
property leased by FLMHC, WCRHN and Rushville. Petitioner failed to
establish that those not-for-profit organizations were using the
property exclusively for tax-exempt hospital purposes (see Genesee
Hosp., 47 AD2d at 43). We therefore further modify the order by
denying those parts of petitioner’s motion for summary judgment
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                                                         CA 11-01152

determining that petitioner was entitled to tax-exempt status for
those portions of its property leased by FLMHC, WCRHN and Rushville.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
