Opinion
February 13, 1962
In an action for a judgment declaring, in substance, that all or part of MacArthur Airport, located in and owned by the defendant Town of Islip, is subject to taxation, plaintiff Board of Education appeals from so much of an order of the Supreme Court, Suffolk County, dated March 7, 1961, as granted defendants' motion, pursuant to rule 106 of the Rules of Civil Practice, to dismiss the complaint on the ground that plaintiff did not have legal capacity to sue. Order insofar as appealed from affirmed, with $10 costs and disbursements. In dismissing the complaint, the Special Term held that plaintiff did not have legal capacity to sue, since it was not a party aggrieved by the assessor's determination that the airport property was exempt from taxation. While it is doubtful that the motion was properly made on the ground stated (cf. Kittinger v. Churchill Evangelistic Assn., 239 App. Div. 253, 256; Field v. Allen, 9 A.D.2d 551), the parties have treated the motion as one involving the legal sufficiency of the complaint; we consider the appeal accordingly (cf. Stevenson v. News Syndicate Co., 302 N.Y. 81, 87). It is our opinion that the complaint was properly dismissed. Under the applicable provisions of the Suffolk County Tax Act (see, e.g., §§ 1, 3, 7, 8, 10; L. 1920 ch. 311, as amd.), which supersede and which are controlling over inconsistent provisions of the Tax Law (Suffolk County Tax Act, § 32), plaintiff has no power or duty with respect to the assessment or collection of taxes. Its budget is met by taxes on the property on the assessment roll subject to taxation; and plaintiff therefore has no direct interest in the question of whether property has been improperly exempted from taxation. Under the circumstances presented, plaintiff is not aggrieved by the assessor's determination that the airport is exempt, and no justifiable controversy is presented for determination (cf. Robert E. Tompkins, Inc., v. Security Trust Co. of Rochester, 277 App. Div. 1090; Standardbred Owners Assn. v. Yonkers Raceway, 1 A.D.2d 882; see, also, Matter of City of New York v. New York Univ., 3 A.D.2d 954). Ughetta, Acting P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.