SHOPPINGTOWN MALL NY LLC v. ASSESSOR, TOWN OF DEWITT

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [762] CA 15-00284 PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ. IN THE MATTER OF THE APPLICATION OF SHOPPINGTOWN MALL NY LLC, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER ASSESSOR, BOARD OF ASSESSORS AND BOARD OF ASSESSMENT OF TOWN OF DEWITT AND TOWN OF DEWITT, RESPONDENTS-RESPONDENTS. ------------------------------------------------- JAMESVILLE DEWITT CENTRAL SCHOOL DISTRICT, INTERVENOR-RESPONDENT. CRONIN, CRONIN, HARRIS & O’BRIEN, P.C., UNIONDALE (RICHARD P. CRONIN OF COUNSEL), FOR PETITIONER-APPELLANT. CERIO LAW OFFICES, SYRACUSE (DAVID W. HERKALA OF COUNSEL), FOR RESPONDENTS-RESPONDENTS. BOND SCHOENECK & KING, PLLC, SYRACUSE (KATHLEEN M. BENNETT OF COUNSEL), FOR INTERVENOR-RESPONDENT. Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered December 10, 2014 in a proceeding pursuant to RPTL article 7. The order, among other things, dismissed the petition. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: On appeal from an order dismissing the petition in this proceeding pursuant to RPTL article 7, petitioner contends that it may challenge the assessment as unconstitutional under the exception to RPTL 727 (1) set forth in Susquehanna Dev. v Assessor of City of Binghamton ( 185 Misc 2d 267 ), and thus that Supreme Court erred in granting the motion and cross motion to dismiss the petition as barred by the statute. Petitioner raises that contention for the first time on appeal, and it therefore is not properly before us (cf. Matter of ELT Harriman, LLC v Assessor of Town of Woodbury, 128 AD3d 201, 206 , lv denied 26 NY3d 918 ; see generally Ciesinski v Town of Aurora, 202 AD2d 984, 985 ). Entered: September 30, 2016 Frances E. Cafarell Clerk of the Court