Petitioner thus concludes that it should not have to pay the sewer district's ad valorem taxes, and that Supreme Court should have granted its motion for summary judgment and denied respondents' “application” for summary judgment. We conclude that the court properly denied petitioner's motion for summary judgment because petitioner failed to meet its initial burden of establishing as a matter of law that it does not own the land on which its mass properties are located. If petitioner owns the land, it must pay the sewer taxes regardless of whether the properties currently produce sewage inasmuch as it is theoretically possible that the properties could be “ ‘developed in a manner that will result in the generation of [sewage]’ ” (Matter of Niagara Mohawk Power Corp. v. Town of Watertown, 6 N.Y.3d 744, 748, 810 N.Y.S.2d 399, 843 N.E.2d 1138, quoting Matter of Niagara Mohawk Power Corp. v. Town of Tonawanda Assessor, 17 A.D.3d 1090, 1092, 796 N.Y.S.2d 202), and it is immaterial that the Town taxes the land separately from the improvements thereon and that petitioner challenges only the tax on the improvements. We further conclude that the court properly granted respondents' application for summary judgment based on the fact that petitioner may still benefit from the sewer district even if it does not own the land on which its mass properties are located. Respondents established that a significant amount of storm water infiltrates the Town's sewer system and that “the sewer district encompasses storm sewers that actually or might potentially safeguard [petitioner]'s transmission and distribution facilities from flooding” ( Town of Watertown, 6 N.Y.3d at 749, 810 N.Y.S.2d 399, 843 N.E.2d 1138). Petitioner failed to raise an issue of fact with respect to that issue ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 42

In this hybrid CPLR article 78 proceeding/declaratory judgment action, petitioner-plaintiff (plaintiff) contends that various parcels of real property it owns in respondent-defendant Town of Marcy (Town) should not be subject to special ad valorem levies imposed by the Town's sewer and garbage districts because the subject properties are not benefitted by the districts' services, and that Supreme Court therefore erred in denying its motion for summary judgment seeking a declaration to that effect and in granting the cross motion of respondents-defendants (defendants) for summary judgment. We reject that contention. “The test for determining whether real properties are benefitted, thus warranting special district assessment, is whether the properties are ‘capable of receiving the service funded by the special ad valorem levy’ ” (Matter of Niagara Mohawk Power Corp. v. Town of Tonawanda Assessor, 17 A.D.3d 1090, 1091, 796 N.Y.S.2d 202,affd. sub nom. Matter of Niagara Mohawk Power Corp. v. Town of Watertown, 6 N.Y.3d 744, 810 N.Y.S.2d 399, 843 N.E.2d 1138, quoting New York Tel. Co. v. Supervisor of Town of Oyster Bay, 4 N.Y.3d 387, 393, 796 N.Y.S.2d 7, 828 N.E.2d 964). “An ad valorem tax will not be deemed invalid unless the taxpayer's benefit received from the imposition of the tax is reduced to the point where it is, in effect, nonexistent” ( Water Club Homeowner's Assn., Inc. v. Town Bd. of Town of Hempstead, 16 A.D.3d 678, 679, 792 N.Y.S.2d 533 [internal quotation marks omitted]; see Matter of Sperry Rand Corp. v. Town of N. Hempstead, 53 Misc.2d 970, 971–973, 280 N.Y.S.2d 600,affd.29 A.D.2d 968, 290 N.Y.S.2d 864,affd.23 N.Y.2d 666, 295 N.Y.S.2d 490, 242 N.E.2d 745). Here, “ ‘there is a sufficient theoretical potential of the properties to be developed in a manner that will result in the generation of garbage [and sewage]’ ” ( Town of Watertown, 6 N.Y.3d at 748, 810 N.Y.S.2d 399, 843 N.E.2d 1138, quoting Town of Tonawanda Assessor, 17 A.D.3d at 1092, 796 N.Y.S.2d 202).

Furthermore, inasmuch as petitioners are not challenging the Town's authority to impose special ad valorem levies for a special district, their reliance on Matter of Niagara Mohawk Power Corp. v. Town of Watertown , 6 N.Y.3d 744, 810 N.Y.S.2d 399, 843 N.E.2d 1138 (2005) and New York Tel. Co. v. Supervisor of Town of Oyster Bay , 4 N.Y.3d 387, 796 N.Y.S.2d 7, 828 N.E.2d 964 (2005) is misplaced. Petitioners' remaining contentions have been considered and lack merit.

The Supreme Court correctly determined that the special ad valorem levies for garbage and refuse collection services imposed by the defendants against certain "mass" parcels of real property owned by the plaintiff were invalid because those properties did not and could not receive any direct benefit from those services ( see RPTL 102; New York Tel. Co. v Supervisor of Town of Oyster Bay, 4 NY3d 387, 393-395; New York Tel. Co. v Supervisor of Town of Hempstead, 80 AD3d 583; Long Is. Water Corp. v Supervisor of Town of Hempstead, 77 AD3d 795; New York Tel. Co. v Supervisor of Town of N Hempstead, 76 AD3d 517; Long Is. Light. Co. v Office of Supervisor of Town of N Hempstead, 233 AD2d 300; cf. Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744, 748). Accordingly, the Supreme Court properly granted those branches of the plaintiffs motion which were for summary judgment declaring that the defendants' imposition of the special ad valorem levies against the subject "mass" properties is illegal and void, enjoining the defendants from continuing to impose those special ad valorem levies, and directing refund of tax payments made in connection with those levies for the subject tax years.

Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings, including the entry of judgments, inter alia, declaring that the defendants' imposition of special ad valorem levies for garbage and refuse collection services against the subject "mass" properties is illegal and void. The Supreme Court correctly determined that the special ad valorem levies for garbage and refuse collection services imposed by the defendants against certain "mass" parcels of real property owned by the plaintiff were invalid because those properties did not and could not receive any direct benefit from those services ( see New York Tel. Co. v Supervisor of Town of Oyster Bay, 4 NY3d 387, 393-395; New York Tel. Co. v Supervisor of Town of N. Hempstead, 76 AD3d 517; cf. Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744, 748). Accordingly, the plaintiffs motion for summary judgment was properly granted.

The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501 [a] [1]). The Supreme Court properly determined that the subject "mass" properties, consisting of water mains, pipes, and hydrants located on or under public and private land not owned by the plaintiff, do not and cannot benefit from garbage and refuse collection services ( cf. Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744, 748). Accordingly, the Supreme Court properly awarded summary judgment to the plaintiff declaring that the imposition of special ad valorem levies on the subject "mass" properties for such services is illegal and void, permanently enjoining the defendants from continued imposition of such special ad valorem levies, and directing the refund of the special ad valorem levies paid for the tax years in which payments were made ( see New York Tel. Co. v Supervisor of Town of Oyster Bay, 4 NY3d 387, 395; New York Tel. Co. v Supervisor of Town of N. Hempstead, 76 AD3d 517; RPTL 102).

Relying on New York Tel. Co. v Supervisor of Town of Oyster Bay ( 4 NY3d 387), this Court held that the Supreme Court correctly determined that the special ad valorem levies for garbage and refuse collection services imposed by the defendants were invalid because the mass properties did not and could not receive any direct benefit from that service ( see New York Tel. Co. v Supervisor of Town of N. Hempstead, 19 AD3d 465). Following the determination of the prior appeal, the defendants moved in the Supreme Court, inter alia, for leave to renew their opposition to the plaintiffs motion for partial summary judgment based on the Court of Appeals' recent decision in Matter of Niagara Mohawk Power Corp. v Town of Watertown ( 6 NY3d 744), and based on two affidavits by Town employees concerning the Highway Department's practice of trimming branches and leaves around the plaintiffs poles and wires, with resulting debris being brought to the Town's transfer station for disposal. The Supreme Court denied that branch of the defendants' motion which was for leave to renew.

Accordingly, the sewer charges are not assessments, and the plaintiff, despite its statutory exemption from liability for assessments, may ultimately be responsible for these fees ( cf. City of New York v Long Is. Power Auth., 14 AD3d 642). Under the circumstances of this case, however, which include the total absence of any pretrial discovery, the plaintiffs motion for summary judgment was premature ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506; Hall Enters., Inc. v Liberty Mgt. Constr., Ltd., 37 AD3d 658; see also Matter of Niagara Mohawk Power Corp. v Town of Watertown, 6 NY3d 744).

Petitioners' claim that they were denied due process is similarly unavailing. In the context of tax assessments, due process requires an opportunity for the taxpayer's grievance to be heard ( see Matter of Niagara Mohawk Power Corp. v Town of Bethlehem, 16 AD3d 888, 890, affd 6 NY3d 744). Here, petitioners had the opportunity to challenge their assessments by filing a complaint with the board of assessment review ( see RPTL 524, 525) or commencing an RPTL article 7 proceeding ( see RPTL 700, 724).

Without any remaining claim that their property was taxed unequally, petitioners' constitutional Equal Protection Clause claim cannot survive. Their due process claim is unavailing; petitioners had an opportunity to challenge their assessments by filing a complaint with the board of assessment review ( see RPTL 524, 525), commencing a proceeding pursuant to RPTL article 7 ( see RPTL 700, 724; see also Matter of Niagara Mohawk Power Corp. v Town of Bethlehem, 16 AD3d 888, 890, affd 6 NY3d 744), or through a CPLR article 78 proceeding such as the present one.