IN RE: BETHELITE COMMUNITY CHURCH (2019)

Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J.), entered September 15, 2017, denying the petition to annul the determination of respondent Department of Environmental Protection, dated October 7, 2003, which denied petitioner's application for an exemption from water and sewer charges, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

In Matter of Brooklyn Assembly Halls of Jehovah's Witnesses, Inc. v. Department of Envtl. Protection of City of N.Y., 11 N.Y.3d 327, 869 N.Y.S.2d 878, 898 N.E.2d 921 [2008], the Court of Appeals upheld respondent's determination that the petitioner church could qualify for an exemption from water and sewer charges only for the portion of its building used for public worship, plus one caretaker's dwelling.  Contrary to petitioner's arguments, the case is controlling here.  Respondent's determination limiting the water and sewer exemption to the portion of petitioner's premises devoted exclusively to public worship, plus the residence of a caretaker for these premises, is not arbitrary and capricious.

Petitioner's contention that Brooklyn Assembly Halls is distinguishable because, unlike the property in that case, its property includes a homeless shelter and a nonpublic school was improperly raised for the first time in its reply papers in the article 78 proceeding and will not be considered (see Bluebird Realty Corp. v. Department of Envtl. Protection of City of N.Y., 300 A.D.2d 6, 7, 749 N.Y.S.2d 875 [1st Dept. 2002] ).

Petitioner urges this Court to consider its poor finances, its good works, and a looming foreclosure, which would force it to close.  While petitioner's situation is compelling, a court cannot invalidate mandatory liens on property based on a foreclosure action specifically authorized by statute (see Public Authorities Law § 1045–j[5];  Matter of Delafield 246 Corp. v. City of New York, 11 A.D.3d 268, 272–273, 782 N.Y.S.2d 441 [1st Dept. 2004], lv denied 4 N.Y.3d 703, 792 N.Y.S.2d 1, 825 N.E.2d 133 [2005] ).

We have considered petitioner's remaining arguments and find them unavailing.