SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

559 

CA 12-01418 

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ. 

 

IN THE MATTER OF GENEVA GENERAL HOSPITAL, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

ASSESSOR OF TOWN OF GENEVA, TOWN OF GENEVA, 

BOARD OF ASSESSMENT REVIEW OF TOWN OF GENEVA, 

COUNTY OF ONTARIO AND GENEVA CITY SCHOOL 

DISTRICT, RESPONDENTS-RESPONDENTS. 

 

HINMAN, HOWARD & KATTELL, LLP, BINGHAMTON (PAUL T. SHEPPARD OF

COUNSEL), FOR PETITIONER-APPELLANT. 

THE WOLFORD LAW FIRM LLP, ROCHESTER (LEA T. NACCA OF COUNSEL), FOR

RESPONDENTS-RESPONDENTS ASSESSOR OF TOWN OF GENEVA, TOWN OF GENEVA AND 

BOARD OF ASSESSMENT REVIEW OF TOWN OF GENEVA. 

 

Appeal from an order of the Supreme Court, Steuben County (Joseph

W. Latham, A.J.), entered May 22, 2012 in a proceeding pursuant to

CPLR article 78 and RPTL article 7. The order granted the motion of

respondents Assessor of the Town of Geneva, Town of Geneva, and Board

of Assessment Review of Town of Geneva to dismiss the proceeding. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner commenced this hybrid CPLR article 78 and

RPTL article 7 proceeding in order to challenge a 2011 property tax

assessment in which it was denied a tax exemption with respect to a

parcel of property it owns in the Town of Geneva, which property is

located in a rural area south of its main hospital. The order

appealed from granted the motion to dismiss the amended petition made

by the Assessor of the Town of Geneva, the Town of Geneva, and the

Board of Assessment Review of the Town of Geneva (respondents). As a

preliminary matter, we note that respondents’ assertion that certain

contentions made by petitioner on appeal are unpreserved for our

review lacks merit inasmuch as those contentions were adequately

raised in Supreme Court. Nevertheless, we conclude that the court

properly granted respondents’ motion and dismissed the amended

petition. We therefore affirm.

We reject petitioner’s contention that the court erred by

dismissing its amended petition insofar as it asserted claims pursuant

to CPLR article 78. Article 7 of the RPTL “is the exclusive procedure
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CA 12-01418 

for review of property [tax] assessments ‘unless otherwise provided by

law’ ” (Niagara Mohawk Power Corp. v City Sch. Dist. of City of Troy,

59 NY2d 262, 268, quoting RPTL 700 [1]). Moreover, it is well settled

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

proceeding under RPTL article 7” (Matter of ViaHealth of Wayne v

VanPatten, 90 AD3d 1700, 1701 [internal quotation marks omitted]; see

Matter of Board of Mgrs. of Greens of N. Hills Condominium v Board of

Assessors of County of Nassau, 202 AD2d 417, 419, lv denied 83 NY2d

757). Unless the party challenging the tax assessment is asserting

that “ ‘the taxing authority acted entirely without jurisdiction or

that the tax itself is unconstitutional,’ ” which is not the case

here, “ ‘the sole vehicle for review of a tax assessment is pursuant

to [RPTL] article 7’ ” (Matter of AES Somerset, LLC v Town of

Somerset, 24 AD3d 1263, 1264; see Samuels v Town of Clarkson, 91 AD2d

836, 837; see also County of Erie v Danitz, 100 AD2d 725, 725-726). 

Petitioner further contends that respondents could not base their

denial of a tax exemption for the subject parcel on the ground that

petitioner’s use of the property was in violation of the existing

zoning restrictions because, inter alia, it had never been cited for

or given notice of a zoning violation. We reject that contention. 

The fact that petitioner used the subject property for “hospital

purposes” as that term is used in the RPTL is not contested (RPTL

420-a [5]). Nevertheless, a property owner who uses its property for

exempt purposes in violation of an applicable zoning law is prohibited

from receiving a tax exemption pursuant to RPTL 420-a (see

Congregation Or Yosef v Town of Ramapo, 48 AD3d 731, 732, lv denied 10

NY3d 711; Matter of Colella v Board of Assessors of County of Nassau,

266 AD2d 286, 287, revd on other grounds 95 NY2d 401; see also McGann

v Incorporated Vil. of Old Westbury, 293 AD2d 581, 584, appeal

dismissed 98 NY2d 728, reconsideration denied 99 NY2d 532). It is

immaterial whether petitioner had prior knowledge of the zoning

violation. “ ‘Tax exemptions . . . are limitations of sovereignty and

are strictly construed . . . If ambiguity or uncertainty occurs, all

doubt must be resolved against the exemption’ ” (Matter of City of

Lackawanna v State Bd. of Equalization & Assessment of State of N.Y.,

16 NY2d 222, 230; see People v Brooklyn Garden Apts., 283 NY 373,

380). Thus, a zoning violation is a bar to receiving the benefit of a

tax exemption even in the absence of an administrative finding, a

citation, or the property owner’s knowledge of such a violation. 

Here, the record establishes that the subject parcel was not zoned for

hospital uses in the 2011 tax year, which provided respondents with a

lawful basis on which to deny petitioner a tax exemption. We have

considered petitioner’s other contentions in support of its assertion

that it was entitled to a property tax exemption for the subject

parcel for the 2011 tax year and find them to be without merit.

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court