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PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town had used land as a public park and, therefore, the land was not subject to taxation by the county:

The New York State Legislature has declared that “[a]ll real property within the state shall be subject to real property taxation . . . unless exempt therefrom by law”… . “Tax exclusions are never presumed or preferred and before [a party] may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion” … .

Here, the Town relies upon section 406 of the Real Property Tax Law. That section provides, with limited exceptions not applicable to this appeal, that “[r]eal property owned by a municipal corporation within its corporate limits held for a public use shall be exempt from taxation and exempt from special ad valorem levies and special assessments” … .

“Although what comprises a public use’ within the meaning of the statute has never been defined with exactitude’ and must necessarily depend upon the peculiar circumstances of each case’, it has been said . . . that [h]eld for a public use, in this connection, means that the property should be occupied, employed, or availed of, by and for the benefit of the community at large, and implies a possession, occupation and enjoyment by the public, or by public agencies'” … . …

The Town’s submissions demonstrated that the subject property was exempt from taxation from the time of its conveyance to the Town in 2005, and that the subsequent tax liens issued by the County were therefore “void ab initio” … . Town of N. Hempstead v County of Nassau, 2018 NY Slip Op 04021, Second Dept 6-6-18

​MUNICIPAL LAW (REAL PROPERTY TAX LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/REAL PROPERTY TAX LAW (MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/PARKS (REAL PROPERTY TAX LAW, MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))

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