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June 11, 1998

CODY, INC., on its own behalf and on behalf of its Directors and Members, Plaintiffs,
TOWN OF WOODBURY, et al., Defendants.

The opinion of the court was delivered by: BRIEANT


 BRIEANT, District Judge.

 Before this Court for decision is a motion by the remaining defendants, heard and fully submitted on June 5, 1998, to dismiss the complaint in this case alleging discriminatory administration of the property taxes in the Town of Woodbury for "lack of [subject matter] jurisdiction," pursuant to Rule 12(b)(1) F.R.Civ.P. Because the complaint is introduced by the allegation that "it arises under the Equal Protection Clause of the Fourteenth Amendment," it is absolutely clear that the Court has subject matter jurisdiction. Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 90 L. Ed. 939 (1946). Accordingly, the Court will treat the motion as made under Rule 12(b)(6).

 Familiarity with the Complaint, as amplified at the hearing on the motion, is assumed on the part of the reader. The only issue presented is whether the relief requested is barred by 28 U.S.C. § 1341, and this Court concludes that it is. Accordingly, the complaint fails to state a claim upon which relief can be granted. *fn1"

 Plaintiffs allege that Cody, Inc. is a religious corporation owned by Hasidic Jews, and that as part of a plan to deny plaintiffs' directors and members the right to equal protection of the laws, the defendant Town of Woodbury and its assessors failed to exempt plaintiffs' properties from real property taxes as owned by a religious corporation and used for religious purposes. Such exemption is required by § 420-a and 420-b of the New York Real Property Tax Law.

 The individual defendants are Tax Assessors for the Town of Woodbury serving respectively in 1994 and 1995 as to Mr. Taylor, and for 1996 and 1997 as to Mr. Ruscher. The County of Orange was originally sued here, but the Court dismissed the action without prejudice as to that defendant because Orange County has no responsibility for preparing the assessment roll of the Town of Woodbury.

 The complaint alleges and the Court assumes that in about 1993, the corporate plaintiff purchased a 70 acre tract of real estate which had been previously subdivided into 25 separate parcels, each separately assessed. On one of these parcels the corporate plaintiff constructed, and now maintains, a house of worship. The Court was informed at the hearing, without contradiction, that the Town had exempted from real property taxation the actual subdivided parcel or tax lot upon which the structure exists, and where the religious services are actually held. The assessors treated the balance of the property as vacant, and not used for religious purposes, thus subjecting it to taxation.

 Section 420-a of the Real Property Tax Law reads in relevant part as follows:

§ 420-A Nonprofit Organizations; Mandatory Class
1(a) Real property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational or moral or mental improvement of men, women or children purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more such purposes either by the owning corporation or association, or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section.
3. Such real property from which no revenue is derived shall be exempt though not in actual use therefor by reason of the absence of suitable buildings thereon if (a) the construction of such buildings or improvements is in progress or is in good faith contemplated by such corporation or association or (b) such real property is held by such corporation or association upon condition that the title thereto shall revert in case any building not intended and suitable for one or more such purposes shall be erected upon such premises or some part thereof.

 Consistent with New York law, the assessor may, in his or her judgment determine what tax parcels are being used for an exempt purpose under § 420-a1(a); what tax parcels are exempt because of contemplated use under § 420-a3, and what parcels are vacant, not used, and for which an exempt use is not in progress, or in good faith contemplation.

 Exempt property owners dissatisfied with the initial determination of the assessor as to valuation or exemption may review such determination on the merits in the New York State Supreme Court by a special proceeding under Article 7 of the New York Real Property Tax Law, § 700 et seq. This is commonly done. See, e.g. Chautauqua Institution v. Town of Chautauqua 35 A.D.2d 1, 312 N.Y.S.2d 364 (4th Dept. 1970) appeal denied, by Chautauqua Institution v. Anderson, 315 N.Y.S.2d 1025 (N.Y.) (TABLE), affirming holding of the trial court that parts of the properties on Lake Chautauqua used by the internationally known Chautauqua Institution were exempt under § 420-a1(a), parts were partially exempt and some parts such as the Refectory, Golf Course, Boat House and Diner were fully taxable; Assembly of God, Inc. v. Lynch, 113 A.D.2d 1016, 494 N.Y.S.2d 571 (4th Dept. 1985) (vacant lots owned by church held taxable); Hapletah v. Town of Fallsburg, 79 N.Y.2d 244, 582 N.Y.S.2d 54, 590 N.E.2d 1182 (1992) (entire parcel used by a religious summer camp held exempt including ten acres of woods and incidental residential facilities); Greater New York Corporation of Seventh-Day Adventists v. Town of Dover, 29 A.D.2d 861, 288 N.Y.S.2d 334 (2d Dept. 1968) (entire parcel of 200 acres (Camp Berkshire) held exempt as a spiritual retreat, including golf course). Furthermore, ...

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