Opinion
March 13, 1992
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Callahan, J.P., Boomer, Balio, Davis and Doerr, JJ.
Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in passing upon the constitutionality of a State statute without first providing notice to the Attorney-General, as required by CPLR 1012 (b) and Executive Law § 71 (see, 520 E. 81st St. Assocs. v Lenox Hill Hosp., 157 A.D.2d 138, 145, revd on other grounds 77 N.Y.2d 944). The lack of notice precludes this Court from passing upon the issue (see, Jefferds v Ellis, 122 A.D.2d 595, after remand 132 A.D.2d 321, lv denied 75 N.Y.2d 708). Moreover, plaintiffs' argument that their predecessor in title obtained title to the disputed parcel of land by virtue of an 1848 conveyance from the State was not the theory upon which plaintiffs relied at trial; therefore, it is not properly before this Court (see, Lichtman v Grossbard, 73 N.Y.2d 792, 794, rearg denied 73 N.Y.2d 912).