EMPIRE STATE BUILDING COMPANY, RESPONDENT, v. NEW YORK STATE DEPARTMENT OFTAXATION AND FINANCE, ET AL., APPELLANTS.

81 N.Y.2d 1002, 615 N.E.2d 1020, 599 N.Y.S.2d 536 (1993).
May 11, 1993

1 No. 158 SSM 17 [1993 N.Y. Int. 108]
Decided May 11, 1993
This memorandum is uncorrected and subject to revision before publication in the New York Reports.

Submitted by Vincent Leong, for state Appellants.
Submitted by James J. Henn, for city Appellants.
Submitted by Marcia E. Kusnetz, for Respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed with costs.

Plaintiff's tenants' payment of an Electricity Rent Inclusion Factor (ERIF) was for electric service provided only as an incident to the rental of commercial premises in plaintiff's building and not as part of "separate transactions which have as their primary purpose the furnishing of utilities or utility services" (Debevoise & Plimpton v New York State Dept of Taxation and Finance et al., 80 NY2d 657, 661). The taxing of the ERIF payments as a sale of utility services under Tax Law § 1105(b) was therefore improper.

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On review of submissions pursuant to section 500.4 of the Rules, order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Hancock and Bellacosa concur. Judge Smith took no part.