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eBook details

• Title: Matter New York Cardiac Center v. John Kondzielaski
• Author : Supreme Court of New York
• Release Date : January 25, 1974
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

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Proceeding remitted to Special Term for hearing and report on the question whether the 22 acres owned by petitioner on North Broadway in Yonkers is currently being used in furtherance of purposes which would qualify for tax exemption pursuant to subdivision 2 of section 421 of the Real Property Tax Law and appeal from the judgment of February 8, 1974 held in abeyance in the interim. Petitioner acquired 24.768 acres at the site in question in April, 1953 and used the property on a tax exempt basis until 1971. In August, 1972 petitioner conveyed 2.768 acres of the property, including a building which had been constructed thereon, to another charitable corporation, retaining ownership of the remaining 22 vacant acres. On or about December 1, 1972, petitioner received a supplemental tax bill, retroactive to July 1, 1972, for real property taxes covering the entire 24.768 acres. The amount of tax was computed for the second half of 1972 and for all of 1973. In January, 1973 petitioner filed an application for exemption from taxation and in February, 1973 filed an application to correct the assessment on the 22 acres to which it still held title. Both applications were denied and petitioner paid, under protest, the amount of tax allocated to the 22 acres. Special Term has canceled the tax bills and ordered a refund of the amount paid under protest, plus interest, in reliance upon Matter of Shrine of Our Lady of Martyrs of Auriesville v. Board of Assessors of Town of Glen (40 A.D.2d 75, 76). That case reenunciated the three-step test which must be met before an owner is entitled to tax exemption, viz., (1) the owner must be organized exclusively for the purposes specified in section 420 (now 421) of the Real Property Tax Law, (2) the property must be used primarily in furtherance of those purposes and (3) no pecuniary profit may inure to any of the owners officers, members or employees; nor may the property be used as a guise for profitmaking operations. We cannot determine on the record before us whether the three-step test has been met, particularly the second step, which concerns use of the property. There is some evidence that petitioner executed a written license agreement covering use of the 22 acres by the charitable corporation which acquired the 2.768 acres, but the evidence of actual use is sketchy and Special Term made no finding in this regard (see Young Womens Christian Assn. v. City of New York, 217 App. Div. 406, 409, affd. 245 N. Y. 562). We therefore remit to Special Term to take proof on this issue and to report, with findings, and the appeal will be held in abeyance pending receipt of such report.

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