Fetzer v. Town Board

Cross appeal unanimously dismissed and judgment affirmed without costs. Memorandum: Supreme Court properly granted the motion of respondents/ defendants seeking summary judgment dismissing the petition/ complaint in this combined CPLR article 78 proceeding and declaratory judgment action brought to contest the determination of respondent/defendant assessor granting a tax exemption to respondent/defendant Presbyterian Homes of Western New York, Inc. (Homes) under RPTL 420-a and 420-b. Homes is constructing a retirement community/transitional care facility and eventually a skilled nursing facility on that land. The court properly determined that petitioners/plaintiffs lack standing to bring the proceeding/action. Although we previously determined that petitioners/plaintiffs have standing to challenge the tax exemption granted to Homes (Matter of Fetzer v Town Bd., 270 AD2d 804, 804-805), our determination was based primarily upon Matter of Colella v Board of Assessors (266 AD2d 286), which has since been reversed by the Court of Appeals (Matter of Colella v Board of Assessors, 95 NY2d 401). Thus, we now conclude that petitioners/plaintiffs lack standing. In view of our determination, we do not consider the remaining contentions of petitioners/plaintiffs, and we dismiss the cross appeal of respondents/defendants because those parties are not aggrieved (see, CPLR 5511; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488; Matter of Brown v Starkweather, 197 AD2d 840, 841, lv denied 82 NY2d 653). (Appeals from Judgment of Supreme Court, Erie County, Mintz, J. — CPLR art 78.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Burns, JJ.