Opinion
(1586) CA 01-01590
December 21, 2001.
(Appeals from Judgment of Supreme Court, Erie County, Mintz, J. — CPLR art 78.)
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER AND BURNS, JJ.
Cross appeal unanimously dismissed and judgment affirmed without costs. Memorandum:
Supreme Court properly granted the motion of respondents/defendants seeking summary judgment dismissing the petition/complaint in this combined CPLR article 78 proceeding and declaratory judgment action brought to contest the determination of respondent/defendant assessor granting a tax exemption to respondent/defendant Presbyterian Homes of Western New York, Inc. (Homes) under RPTL 420-a and 420-b. Homes is constructing a retirement community/transitional care facility and eventually a skilled nursing facility on that land. The court properly determined that petitioners/plaintiffs lack standing to bring the proceeding/action. Although we previously determined that petitioners/plaintiffs have standing to challenge the tax exemption granted to Homes ( Matter of Fetzer v. Town Bd., 270 A.D.2d 804, 804-805), our determination was based primarily upon Matter of Colella v. Board of Assessors ( 266 A.D.2d 286), which has since been reversed by the Court of Appeals ( Matter of Colella v. Board of Assessors, 95 N.Y.2d 401). Thus, we now conclude that petitioners/plaintiffs lack standing. In view of our determination, we do not consider the remaining contentions of petitioners/plaintiffs, and we dismiss the cross appeal of respondents/defendants because those parties are not aggrieved ( see, CPLR 5511; Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488; Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, lv denied 82 N.Y.2d 653).