Lanz v. Feola

— 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 AD2d 138, 145, revd on other grounds 77 NY2d 944). The lack of notice precludes this Court from passing upon the issue (see, Jefferds v Ellis, 122 AD2d 595, after remand 132 AD2d 321, lv denied 75 NY2d 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 NY2d 792, 794, rearg denied 73 NY2d 912). (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J. — Dismiss Complaint.) Present — Callahan, J. P., Boomer, Balio, Davis and Doerr, JJ.