Economic Opportunity Com'n of Nassau County, Inc. v. Village of Hempstead

• Citation: 148 A.D.2d 570,539 N.Y.S.2d 39
• Parties: ECONOMIC OPPORTUNITY COMMISSION OF NASSAU COUNTY, INC., Respondent-Appellant v. VILLAGE OF HEMPSTEAD, et al., Appellants-Respondents.
• Decision Date: 20 March 1989
• Court: New York Supreme Court Appellate Division

Page 39

539 N.Y.S.2d 39

148 A.D.2d 570

ECONOMIC OPPORTUNITY COMMISSION OF NASSAU COUNTY, INC. Respondent-Appellant v. VILLAGE OF HEMPSTEAD, et al., Appellants-Respondents.

Supreme Court, Appellate Division Second Department.

March 20, 1989.

Meyer, Suozzi, English & Klein, P.C., Mineola (Richard G. Fromewick, Edward J. Gutleber and Jack Rubinstein, of counsel), for appellants-respondents.

Siegel, Fenchel & Peddy, P.C., Garden City (Andrew G. Cangemi and Saul R. Fenchel, of counsel), for respondent-appellant.

Before THOMPSON, J.P., and LAWRENCE, KUNZEMAN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Village of Hempstead and Charles G. Firmbach, the Tax Assessor of the Village of Hempstead, denying the petitioner tax exempt status, the Village of Hempstead and Charles G. Firmbach appeal from so much of an order of the Supreme Court, Nassau County (Roberto, J.), dated November 25, 1986, as determined that the petitioner was a nonprofit organization within the meaning of Real Property Tax Law § 420-a, and the petitioner appeals from a judgment of the same court entered February 5, 1988, which dismissed the petition.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the appellants-respondents are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because an intermediate order in a CPLR article 78 proceeding is not appealable as of right (CPLR 5701[b][1] ), and even if leave had been granted, any appeal therefrom would have terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

The petitioner, a nonprofit anti-poverty organization, received a commercial office building as a donation in 1981. Because the petitioner purportedly intended to move its administrative offices into the building, it enlisted the services of an architect to develop space plans for the use of the building. Upon conducting an initial investigation, the architect determined that the building had major structural deficiencies, and was in need of extensive repairs including a full gut rehabilitation. Although the petitioner originally anticipated that the cost of repairs and rehabilitation would run no higher than $50,000 that estimate skyrocketed to a figure approaching $800,000 as a result of the architect's findings.

In 1982, the petitioner applied for a real property tax exemption in regard to the subject property pursuant to RPTL 420-a(1). Charles G. Firmbach, the Tax Assessor of the Village of Hempstead, subsequently informed the petitioner that it did not qualify for the exemption and he was denying its application. The petitioner thereupon commenced this proceeding pursuant to CPLR article 78 to annul that determination.

Using a grant in the amount of $270,000 that it received from the New York State Department of State, the petitioner embarked upon construction intended to rehabilitate the structure. However, because the petitioner was purportedly unsuccessful in obtaining any additional grants of funding, the construction was, in effect, all but halted by 1985 notwithstanding the fact that the building still required major repairs. Throughout this period, the building remained unoccupied.

In 1986, the petitioner moved for summary judgment. Because the subject real property was not then being used for any purpose, it was necessary for the court to determine not only whether the petitioner was a non-profit organization within the meaning of RPTL 420-a(1) but also whether pursuant to RPTL 420-a(3) the petitioner contemplated, in good faith, improvements necessary to make the property habitable. The Supreme Court determined that the petitioner was a non-profit organization within the meaning of RPTL 420-a(1) but denied the petitioner's motion on the grounds...