IN RE: THE APPLICATION OF SHOPPINGTOWN

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Supreme Court, Appellate Division, Fourth Department.

IN RE: THE APPLICATION OF SHOPPINGTOWN MALL N.Y. LLC, PETITIONER–APPELLANT, v. ASSESSOR, BOARD OF ASSESSORS AND BOARD OF ASSESSMENT OF TOWN OF DEWITT AND TOWN OF DEWITT, RESPONDENTS–RESPONDENTS.

CA 15–00284

Decided: September 30, 2016

PRESENT:  WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ. 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.

MEMORANDUM AND ORDER

JAMESVILLE DEWITT CENTRAL SCHOOL DISTRICT,

INTERVENOR–RESPONDENT.

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 A.D.2d 984, 985).

Frances E. Cafarell

Clerk of the Court