SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

462 

CA 13-01800 

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

 

IN THE MATTER OF NIAGARA MOHAWK POWER 

CORPORATION, DOING BUSINESS AS NATIONAL 

GRID, PETITIONER-PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

TOWN OF MARCY ASSESSOR, TOWN OF MARCY BOARD 

OF ASSESSMENT REVIEW AND TOWN OF MARCY, 

RESPONDENTS-DEFENDANTS-RESPONDENTS. 

 

HISCOCK & BARCLAY, LLP, ALBANY (KARLA M. CORPUS OF COUNSEL), FOR

PETITIONER-PLAINTIFF-APPELLANT. 

GORMAN, WASZKIEWICZ, GORMAN & SCHMITT, UTICA (WILLIAM P. SCHMITT OF

COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS. 

 

Appeal from a judgment (denominated order and judgment) of the

Supreme Court, Oneida County (Samuel D. Hester, J.), entered December

14, 2012 in a CPLR article 78 proceeding and declaratory judgment

action. The judgment, among other things, granted respondentsdefendants’ cross motion for summary judgment dismissing the

petitions-complaints. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the provision dismissing

the petitions-complaints and granting judgment in favor of

respondents-defendants as follows: 

It is ADJUDGED and DECLARED that the imposition of ad

valorem levies for garbage collection and sewer services

against the subject properties is valid, 

and as modified the judgment is affirmed without costs. 

Memorandum: In this hybrid CPLR article 78

proceeding/declaratory judgment action, petitioner-plaintiff

(plaintiff) contends that various parcels of real property it owns in

respondent-defendant Town of Marcy (Town) should not be subject to

special ad valorem levies imposed by the Town’s sewer and garbage

districts because the subject properties are not benefitted by the

districts’ services, and that Supreme Court therefore erred in denying

its motion for summary judgment seeking a declaration to that effect

and in granting the cross motion of respondents-defendants

(defendants) for summary judgment. We reject that contention. “The
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CA 13-01800 

test for determining whether real properties are benefitted, thus

warranting special district assessment, is whether the properties are

‘capable of receiving the service funded by the special ad valorem

levy’ ” (Matter of Niagara Mohawk Power Corp. v Town of Tonawanda

Assessor, 17 AD3d 1090, 1091, affd sub nom. Matter of Niagara Mohawk

Power Corp. v Town of Watertown, 6 NY3d 744, quoting New York Tel. Co.

v Supervisor of Town of Oyster Bay, 4 NY3d 387, 393). “An ad valorem

tax will not be deemed invalid unless the taxpayer’s benefit received

from the imposition of the tax is reduced to the point where it is, in

effect, nonexistent” (Water Club Homeowner’s Assn., Inc. v Town Bd. of

Town of Hempstead, 16 AD3d 678, 679 [internal quotation marks

omitted]; see Matter of Sperry Rand Corp. v Town of N. Hempstead, 53

Misc 2d 970, 971-973, affd 29 AD2d 968, affd 23 NY2d 666). 

Here, “ ‘there is a sufficient theoretical potential of the

properties to be developed in a manner that will result in the

generation of garbage [and sewage]’ ” (Town of Watertown, 6 NY3d at

748, quoting Town of Tonawanda Assessor, 17 AD3d at 1092). Unlike the

plaintiff in Long Is. Water Corp. v Supervisor of Town of Hempstead

(77 AD3d 795, lv denied 16 NY3d 711), plaintiff herein owns the land

on which its “mass” properties sit, and we conclude that it is

theoretically possible that such land, if put to a different use,

could generate garbage and sewage. 

Supreme Court therefore properly denied plaintiff’s motion and

properly granted defendants’ cross motion. Because plaintiff sought

declaratory relief, however, the court erred in dismissing the

petitions-complaints without declaring the rights of the parties (see

New York Tel. Co. v Supervisor of Town of Oyster Bay, 6 AD3d 511, 512,

affd 4 NY3d 387; Restuccio v City of Oswego, 114 AD3d 1191, 1191), and

we therefore modify the judgment accordingly. 

Entered: June 13, 2014 Frances E. Cafarell

Clerk of the Court