I concur in the affirmance of the order at Special Term.
I dissent from the plurality opinion only to the extent that it. would reach and determine the constitutionality of the 1979 legislation which was not in existence at the time the trial court rendered the determination presently under review.
Despite the allusion in the plurality decision to the confusion concerning the applicable law and the acquiescence of the parties in our court’s review of the 1979 legislation, such action in my view would violate a basic principle of appellate review, i.e., that issues, particularly those of constitutional dimension which were never argued or determined at the trial court level, cannot be raised for the first time upon appeal. This fundamental rule has been relied upon in recent years in three of the four departments of *235the Appellate Division (Emmer v Emmer, 69 AD 2d 850 [2d Dept—attack on constitutionality of section 237 of the Domestic Relations Law]; Eisen v Eisen, 59 AD2d 521 [2d Dept—attack on constitutionality of sections 32 and 240 of the Domestic Relations Law]; Matter of Gary A., 60 AD2d 927 [3d Dept—attack on constitutionality of section 1039 of the Family Court Act] ; Colenzo v Kernan, 49 AD2d 809 [4th Dept—attack on constitutionality of the no-fault insurance law]).
The importance of requiring the development of a full trial court record before appellate review of a statute’s constitutionality may take place is emphasized in the present case where a majority of this court would strike down the residential exemption contained in section 721 of the Real Property Tax Law because it can find no rational connection between such exemption and any valid legislative purpose. If this issue had been litigated in the trial court, the proponents of the law would at least have been afforded the opportunity of proving the existence of such connection, possibly by offering evidence of the problem which the statute was intended to correct. In the absence of any trial record on this entire issue, the majority is reduced to examining the brief statement of legislative purpose contained in the statute itself. This procedure would appear less than adequate in dealing with an issue of such State-wide magnitude.
Moreover, the procedure employed here, purportedly in the interest of judicial economy, would appear to violate the oft-quoted judicial maxim that courts will avoid passing on a constitutional question if there is any other way of disposing of the case (McKinney’s Cons Laws of NY, Book 1, Statutes, § 150). This court could quite easily affirm on the opinion at Special Term, leaving the 1979 legislation for another day and a more complete record. The argument that appellate courts decide the law as it stands when it reaches them is generally true. However, in most such instances, a public hearing on due notice is held so that aggrieved persons may be afforded an opportunity to be heard. Such was not the case in the action of the State Legislature with respect to the 1979 laws at issue.
*236Finally, as Chief Justice Marshall remarked in McCulloch v Maryland (4 Wheat [17 US] 316, 431),- “the power to tax involves the power to destroy”. The plurality speaks of a procedural or evidentiary change effected by the Laws of 1979, but as to the residential taxpayer, if deprived of ■ the equalization method in a tax certiorari case the law as to him is substantive and the resulting expense not only prohibitive, but also destructive of his rights.
Ó’Connor, J., concurs with Lazer, J. P.; Mangano concurs in part and dissents in part in an opinion; Cohalan concurs in part and dissents in part in an opinion.
Order modified, on the law, by adding decretal paragraphs (1) declaring section 721 of the Real Property Tax Law unconstitutional and (2) declaring subdivision 3 of section 720 of the Real Property Tax Law constitutional. As so modified, order affirmed insofar as appealed from, without costs or disbursements.