Opinion
December 16, 1998
Appeal from the Supreme Court, Orange County (Dillon, J.).
Ordered that the judgment is modified by deleting from the first decretal paragraph thereof the provision that the real property known as parcel 105-1.2.1-1 is cemetery property and is exempt from taxation pursuant to Real Property Law § 450, and substituting therefor a provision denying the petition to that extent and severing so much of the petition as concerns that parcel; as so modified the judgment is affirmed insofar as appealed from, with one bill of costs to the appellants, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith.
The Supreme Court improperly granted the petition to the extent of expunging taxes assessed on so much of the subject real property as is known as parcel 105-1.2.1-1. The petitioner failed to raise its claim that that 5.8-acre parcel was exempt under Real Property Law § 450 because it was used as cemetery property until the respondents' refusal to expunge taxes imposed on the ground that the property was exempt under Real Property Tax Law § 420-a, which they sought to review in the instant proceeding ( see, Matter of Leogrande v. State Liq. Auth., 19 N.Y.2d 418; Matter of Mott v. New York State Div. of Hous. Community Renewal, 191 A.D.2d 566). Accordingly, we remit the matter to the Supreme Court, Westchester County, for a determination of the other issues raised in the petition insofar as they concern that parcel.
The Supreme Court erroneously determined that the entire 10 acres of the petitioner's property was cemetery property pursuant to Real Property Law § 450, as that statute was not applicable to the issue of taxation and assessments of the petitioner's property ( see, Real Property Law § 450; RPTL 446 Real Prop. Tax ). However, we decline to search the record and grant judgment in favor of the intervenors as these issues were raised for the first time on appeal ( see, Dunham v. Hilco Constr. Co., 89 N.Y.2d 425).
The intervenors' remaining contentions are without merit.
Rosenblatt, J. P., Copertino, Thompson and Joy, JJ., concur.