IN RE: 194 Main

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: 194 Main, Inc., respondent, v. Board of Assessors, et al., appellants.

2010–05262 2010–05264 2010–05266 (Index Nos. 403115/07, 409181/08, 404086/09)

Decided: January 24, 2012

REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN SANDRA L. SGROI, JJ. John Ciampoli, County Attorney, Mineola, N.Y. (Brian Libert, Dennis J. Saffran, and Robert Van der Waag of counsel), for appellants. Cronin Cronin & Harris, Mineola, N.Y. (Erin A. O'Brien of counsel), for respondent.

Argued—November 15, 2011

DECISION & ORDER

In three related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the 2007–2008, 2008–2009, and 2009–2010 tax years, the Board of Assessors and the Assessment Review Commission of the County of Nassau appeal from (1) an order of the Supreme Court, Nassau County (Adams, J.), dated March 25, 2010, which granted the petitioner's motion for summary judgment on the petition relating to the 2007–2008 tax year and directed them to reclassify the subject property from class four to class one, recalculate the petitioner's tax liability for that year, and refund all overpaid taxes, (2) a second order of the same court, also dated March 25, 2010, which granted the petitioner's motion for summary judgment on the petition relating to the 2008–2009 tax year and directed them to reclassify the subject property from class four to class one, recalculate the petitioner's tax liability for that year, and refund all overpaid taxes, and (3) a third order of the same court, also dated March 25, 2010, which granted the petitioner's motion for summary judgment on the petition relating to the 2009–2010 tax year and directed them to reclassify the subject property from class four to class one, recalculate the petitioner's tax liability for that year, and refund all overpaid taxes.

ORDERED that the orders are affirmed, with one bill of costs.

The Supreme Court properly determined that the petitioner's property should be reclassified from class four to class one (see RPTL 1802[1] ).   The subject property is situated in a residential zone, and the petitioner's application for a variance to use the property commercially was denied.   Under these circumstances, the property should be taxed as class one vacant land (see RPTL 1802[1][e];  Matter of Shore Dev. Partners v Board of Assessors, 82 AD3d 988), as it is not being put to use in a manner which is materially beneficial to the petitioner (cf.  Matter of Richmond County Country Club v Tax Commn. of City of N.Y., 53 AD3d 661, 663).  “The valuation of property is determined by its State as of the taxable date, and may not be assessed on the basis of some future contemplated use” (Matter of General Elec. Co. v. Macejka, 117 A.D.2d 896, 897;  see Matter of Miriam Osborn Mem. Home Assn v Assessor of City of Rye, 275 A.D.2d 716, 717).   Since the petitioner established its prima facie entitlement to judgment as a matter of law on its separate petitions seeking reclassification of the subject property as class one for the 2007–2008, 2008–2009, and 2009–2010 tax years (see Zuckerman v. City of New York, 49 N.Y.2d 557, 560), and the appellants failed to raise a triable issue of fact in opposition thereto (id.), the Supreme Court properly granted the petitioner's motions for summary judgment on the petitions.

RIVERA, J.P., LEVENTHAL, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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