SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

151 

CA 14-01124 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ. 

 

IN THE MATTER OF CROUSE HEALTH SYSTEM, INC., 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

CITY OF SYRACUSE, DAVID CLIFFORD, COMMISSIONER 

OF ASSESSMENT FOR CITY OF SYRACUSE, CITY OF 

SYRACUSE BOARD OF ASSESSMENT REVIEW, COUNTY OF 

ONONDAGA AND CITY OF SYRACUSE SCHOOL DISTRICT, 

RESPONDENTS-APPELLANTS.

 

ROBERT P. STAMEY, CORPORATION COUNSEL, SYRACUSE (SHANNON M. JONES OF

COUNSEL), FOR RESPONDENTS-APPELLANTS.

HARTER SECREST & EMERY LLP, ROCHESTER (MEGAN K. DORRITIE OF COUNSEL),

FOR PETITIONER-RESPONDENT. 

 

Appeal from an order and judgment of the Supreme Court, Onondaga

County (Donald A. Greenwood, J.), entered February 3, 2014 in a

proceeding pursuant to CPLR article 78 and RPTL article 7. The order

and judgment granted petitioner’s motion for summary judgment. 

It is hereby ORDERED that the order and judgment so appealed from

is unanimously reversed on the law without costs, the motion is

denied, and the petition is dismissed insofar as it seeks relief

pursuant to CPLR article 78. 

Memorandum: In this proceeding pursuant to, inter alia, RPTL

article 7, petitioner challenges the tax assessments on three parcels

of property that contain a garage and office space. Petitioner sought

full exemptions for the subject parcels pursuant to RPTL 420-a, and

respondent Commissioner of Assessment granted a 75% exemption for the

garage parcels, but denied the remainder of the request. Petitioner

commenced this proceeding challenging that determination, and

respondents appeal from an order and judgment granting petitioner’s

motion for summary judgment. We agree with respondents that Supreme

Court erred in granting the motion. We also note at the outset that

the petition must be dismissed insofar as it seeks relief pursuant to

CPLR article 78, because the proper vehicle for seeking the instant

relief is a certiorari proceeding pursuant to RPTL article 7 (see

Matter of ViaHealth of Wayne v VanPatten, 90 AD3d 1700, 1701).

 

 It is well settled that, pursuant to the RPTL, “[r]eal property

owned by a corporation or association organized or conducted
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CA 14-01124 

exclusively for . . . hospital . . . purposes . . . and used

exclusively for carrying out thereupon . . . such purpose[] . . .

shall be exempt from taxation” (RPTL 420-a [1] [a]). Here,

respondents concede that petitioner is organized for an exempt

purpose, as a hospital, and thus only the second prong of the statute

is at issue. “[T]he test of entitlement to tax exemption under the

used exclusively clause of [RPTL 420-a (1) (a)] is whether the

particular use is reasonably incident[al] to the [primary or] major

purpose of the [corporation] . . . Put differently, the determination

of whether the property is used exclusively for the statutory purposes

depends upon whether its primary use is in furtherance of the

permitted purposes” (Matter of Merry-Go-Round Playhouse, Inc. v

Assessor of City of Auburn, 104 AD3d 1294, 1296, affd 24 NY3d 362

[internal quotation marks omitted]). “The burden of establishing that

the property is entitled to a tax exemption rests with the taxpayer”

(Merry-Go-Round Playhouse, Inc., 24 NY3d at 367, citing Matter of

Lackawanna Community Dev. Corp. v Krakowski, 12 NY3d 578, 581). 

Additionally, when a taxpayer in a tax certiorari proceeding seeks

summary judgment, “it is necessary that the movant establish his cause

of action or defense sufficiently to warrant the court as a matter of

law in directing judgment in his favor . . . , and he must do so by

tender of evidentiary proof in admissible form” (Zuckerman v City of

New York, 49 NY2d 557, 562 [internal quotation marks omitted]; see

e.g. ViaHealth of Wayne, 90 AD3d at 1701-1702; Fusco v Assessor of

City of Utica, 178 AD2d 995, 995). 

Here, we agree with respondents that petitioner failed to

establish that the primary use of the subject parcels is for exempt

purposes, and thus it failed to meet its burden on the motion. 

Indeed, the evidence submitted by petitioner in support of the motion

established that an undetermined portion of the people who used the

garage did so for purposes associated with nonexempt uses such as the

adjacent private physicians’ offices. Inasmuch “[a]s the private

practice of medicine by a hospital’s attending physicians is primarily

a commercial enterprise, and such physicians’ offices are not entitled

to a tax exemption under RPTL 420-a . . . , the parking spaces

subleased to those offices cannot be said to so further the hospital’s

purposes as to create an entitlement to an exemption” (Matter of St.

Francis Hosp. v Taber, 76 AD3d 635, 640; see Matter of Genesee Hosp. v

Wagner, 47 AD2d 37, 43-45, affd 39 NY2d 863). Petitioner also

established that 6.3 to 8.2% of the yearly revenue for the entire

garage was gained from people attending sporting and entertainment

events at nearby venues, which petitioner concedes is not an exempt

use. Finally, the evidence submitted by petitioner established that

approximately 10% of one of the office buildings and 20% of the other

was used for nonexempt purposes, but failed to establish conclusively

what part of the remaining office space was actually used by

petitioner, and for what specific purpose. Thus, because petitioner

failed to meet its initial burden of establishing its entitlement to

judgment as a matter of law (see generally Zuckerman, 49 NY2d at 562),

the court should have denied the motion, “regardless of the

sufficiency of the opposing papers” (Winegrad v New York Univ. Med.

Ctr., 64 NY2d 851, 853).
-3- 151 

CA 14-01124 

Contrary to petitioner’s further contention, we conclude that the

court abused its discretion in deeming respondents to have admitted

all the information in petitioner’s “Statement of Undisputed Material

Facts” submitted pursuant to Rule 19-a of the Rules of the Commercial

Division of the Supreme Court ([hereafter, 19-a Statement] see 22

NYCRR 202.70 [g] [Rule 19-a (a)]). The 19-a Statement was merely an

almost verbatim repetition of an affidavit submitted by one of

petitioner’s employees in support of the motion, and respondents

clearly disputed the content of the information in it. Further,

petitioner failed to submit sufficient evidence in admissible form in

support of the 19-a Statement, as required by the Rule (see 22 NYCRR

202.70 [g] [Rule 19-a (d)]; cf. EBC I, Inc. v Goldman Sachs & Co., 91

AD3d 211, 220, lv granted 19 NY3d 810). Although “the rule gives a

motion court the discretion to deem facts admitted, the court is not

required to do so” (Abreu v Barkin & Assoc. Realty, Inc., 69 AD3d 420,

421). Consequently, although “it would have been better for

[respondents] to submit a paragraph-by-paragraph response to

[petitioner’s] statement” as required by the regulation (Al Sari v

Alishaev Bros., Inc., 121 AD3d 506, 506-507; see 22 NYCRR 202.70 [g]

[Rule 19-a (b)]), under the circumstances the court abused its

discretion in deeming the entire statement admitted. The evidence

submitted in support of petitioner’s motion failed to eliminate all

“triable issues of fact and the court was not compelled to grant

summary judgment solely on the basis of blind adherence to the

procedure set forth in Rule 19-a” (Abreu, 69 AD3d at 421; see Slattery

Skanska Inc. v American Home Assur. Co., 67 AD3d 1, 12). 

Entered: March 20, 2015 Frances E. Cafarell

Clerk of the Court