Opinion
Argued February 7, 1980
Decided March 25, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ROBERT C. MEADE, J.
Stephen J. Fallis and Horace Z. Kramer for appellant.
Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for respondent.
Robert L. Beebe and Richard J. Sinnott for State Board of Equalization and Assessment, amicus curiae.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Inasmuch as plaintiff in this case conceded that the property sought to be taxed was properly taxable and did not allege that the tax assessors lacked jurisdiction over the property but, rather, sought only a partial exemption, we agree with the Appellate Division that a declaratory judgment action could not properly be brought upon the facts alleged. (See Sikora Realty Corp. v City of New York, 262 N.Y. 312, 317-318; Young Women's Christian Assn. v City of New York, 217 App. Div. 406, 410, affd 245 N.Y. 562.) This is so even though, as our decision in Matter of Manhattan Cable TV Servs., Div. of Sterling Information Servs. v Freyberg ( 49 N.Y.2d 868 [decided herewith]) demonstrates, the property was, in fact, not subject to taxation. We would note, however, that plaintiff has also commenced a separate tax certiorari proceeding pursuant to article 7 of the Real Property Tax Law, and will, in light of our decision in Manhattan Cable TV (supra), receive relief from taxation in that proceeding.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order affirmed.