Bethelite Community Church v. Department of Environmental Protection

257 Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 12, 2005, which granted the petition brought pursuant to CPLR article 78 to compel the Department of Environmental Protection (DEP) to grant petitioner an exemption from water and sewer charges, reverse DEP’s assessments, charges and penalties against it, and abate any tax liens arising from those assessments, charges and penalties, and denied respondents’ cross motion to dismiss the petition, unanimously affirmed, without costs. Petitioner is entitled to an exemption from the payment of water and sewer charges pursuant to statute. Although the statute provides that the premises must be used “exclusively” for religious or educational purposes to qualify for the exemption and there are residences within petitioner’s church, those residences are for the church administrator and a teacher employed by the church’s school and thus are incidental to the main and exempt uses and purposes of the property. Accordingly, they do not defeat the exemption (see L 1887, ch 696, as amended by L 1980, ch 893; RPTL 420-a; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244 [1992]). The court properly rendered a decision on the merits without awaiting respondent’s answer, under the particular circumstances presented, most notably the pending foreclosure upon petitioner’s property based upon liens for unpaid water and sewer charges notwithstanding petitioner’s clear statutory entitlement to an exemption from such charges. The grounds for respondents’ opposition to the petition were sufficiently set forth in their cross motion to dismiss (see Matter of Davila v New York City Hous. Auth., 190 AD2d 511 [1993], lv denied 87 NY2d 801 [1995]). We have considered respondents’ remaining arguments and find them unavailing. Concur—Buckley, P.J., Marlow, Sullivan, Catterson and McGuire, JJ. [See 8 Misc 3d 274 (2004).]