SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

906 

CA 13-00083 

PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.

 

 

VILLAGE OF LOWVILLE, 

PLAINTIFF-PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

COUNTY OF LEWIS, 

DEFENDANT-RESPONDENT-RESPONDENT.

 

HRABCHAK, GEBO & LANGONE, P.C., WATERTOWN (MARK G. GEBO OF COUNSEL),

FOR PLAINTIFF-PETITIONER-APPELLANT. 

RICHARD J. GRAHAM, COUNTY ATTORNEY, LOWVILLE, FOR DEFENDANTRESPONDENT-RESPONDENT.

Appeal from a judgment (denominated memorandum decision and

order) of the Supreme Court, Lewis County (Hugh A. Gilbert, J.),

entered August 10, 2012. The judgment, among other things, dismissed

the complaint-petition. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: As limited by its notice of appeal, plaintiffpetitioner (plaintiff) appeals from that part of a judgment denying

plaintiff’s request for specific performance of a tax exemption

agreement, as asserted in the second cause of action, and dismissing

the complaint-petition. We note at the outset that, although

plaintiff also sought a declaration, Supreme Court properly did not

grant such relief where, as here, plaintiff “has an adequate,

alternative remedy in another form of action, such as breach of

contract” (Apple Records v Capitol Records, 137 AD2d 50, 54). 

In 1998 the parties executed a written agreement (Exemption

Agreement) in which defendant-respondent (defendant) agreed to grant

plaintiff a tax exemption for its water treatment facility property

pursuant to RPTL 406 (3). The Exemption Agreement provided that

plaintiff would receive a tax exemption for “so long as the [water

treatment facility property] is used for a public purpose satisfying

the requirements of [RPTL 406].” The Exemption Agreement further

provided that an amendment to RPTL 406 (3), some “other legislative

change,” or a final court order subjecting the property to taxation

shall modify the obligations of the parties to comply with such

amendment, legislative change or court order. In 2011, after

conducting a study of its tax exemption policies, defendant’s Board of
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CA 13-00083 

Legislators (County Board) passed a resolution (2011 resolution) to

phase out all tax exemptions for municipal water and sewage treatment

facilities, including the tax exemption with respect to plaintiff’s

facility under the Exemption Agreement. In 2012, the County Board

voted on a resolution that would grant an exemption solely to

plaintiff while continuing to phase out the exemptions for all other

municipalities, but the resolution did not pass.

With respect to plaintiff’s cause of action for specific

performance of the Exemption Agreement, we agree with the court that

the County Board’s adoption of the 2011 resolution phasing out all tax

exemptions for municipal water and sewage treatment facilities

constituted a “legislative change” within the meaning of the Exemption

Agreement. The County Board is a legislative body that exercises

defendant’s power “through a local law or resolution duly adopted by

the board” (County Law § 153 [1]; see § 150-a [1]), and the Exemption

Agreement specifically provides that a legislative change shall modify

the obligations of the parties to comply with such legislative change. 

We therefore affirm the judgment insofar as appealed from.

Entered: November 15, 2013 Frances E. Cafarell

Clerk of the Court