Opinion
568 CA 18–01575
07-31-2019
In the Matter of LEVEL 3 COMMUNICATIONS, LLC, Petitioner-Plaintiff–Appellant, v. CHAUTAUQUA COUNTY, City of Dunkirk, Town of Dunkirk, Town of Portland, Town of Ripley, Town of Westfield, Village of Brocton, Village of Westfield, Dunkirk City School District, Brocton Central School District, Fredonia Central School District, Ripley Central School District, and Westfield Central School District, Respondents-Defendants–Respondents
INGRAM YUZEK GAINEN CARROLL & BERTOLOTTI, LLP, NEW YORK CITY (JOHN G. NICOLICH OF COUNSEL), FOR PETITIONER–PLAINTIFF–APPELLANT. HODGSON RUSS LLP, BUFFALO (MICHAEL B. RISMAN OF COUNSEL), AND STEPHEN M. ABDELLA, COUNTY ATTORNEY, MAYVILLE, FOR RESPONDENTS–DEFENDANTS–RESPONDENTS.
INGRAM YUZEK GAINEN CARROLL & BERTOLOTTI, LLP, NEW YORK CITY (JOHN G. NICOLICH OF COUNSEL), FOR PETITIONER–PLAINTIFF–APPELLANT.
HODGSON RUSS LLP, BUFFALO (MICHAEL B. RISMAN OF COUNSEL), AND STEPHEN M. ABDELLA, COUNTY ATTORNEY, MAYVILLE, FOR RESPONDENTS–DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner-plaintiff (petitioner) commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, to annul respondents-defendants' determinations that its fiber optic installations are taxable real property pursuant to RPTL 102(12)(i). Petitioner appeals from a judgment dismissing its amended petition-complaint. We affirm. Initially, we note that this is properly only a CPLR article 78 proceeding, not a declaratory judgment action (see Matter of Level 3 Communications, LLC v. Chautauqua County , 148 A.D.3d 1702, 1703, 50 N.Y.S.3d 202 [4th Dept. 2017], lv denied 30 N.Y.3d 913, 2018 WL 943534 [2018] ). Furthermore, petitioner correctly concedes that its fiber optic installations "are taxable as ‘lines’ under [ RPTL 102(12)(i) ] despite the fact that they do not conduct electricity" ( Matter of T–Mobile Northeast, LLC v. DeBellis , 32 N.Y.3d 594, 608, 94 N.Y.S.3d 211, 118 N.E.3d 873 [2018], rearg. denied 32 N.Y.3d 1197, 95 N.Y.S.3d 150, 119 N.E.3d 790 [2019] ). Petitioner nevertheless contends that those installations are exempt from taxation as "property used in the transmission of news or entertainment radio, television or cable television signals for immediate, delayed or ultimate exhibition to the public" ( RPTL 102[12][i][D] ). We reject that contention. Petitioner failed to establish that its fiber optic installations are "primarily or exclusively used for one of the exempt purposes in RPTL 102(12)(i)(A)—(D)" (Matter of Level 3 Communications, LLC v. Erie County , 174 A.D.3d 1497, ––––, ––– N.Y.S.3d ––––, 2019 WL 3438656 [July 31, 2019] [4th Dept. 2019] ).