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Emery Air Freight Corporation v. Tishelman

Court of Appeals of the State of New York
Nov 24, 1981
431 N.E.2d 636 (N.Y. 1981)

Opinion

Argued October 19, 1981

Decided November 24, 1981

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department.

Jon B. Levison and Myron Beldock for appellant.

Allen G. Schwartz, Corporation Counsel (Arnold Fox and Gale Zareko of counsel), for respondent.


MEMORANDUM.

The judgment of the Appellate Division should be affirmed, with costs.

Petitioner, Emery Air Freight Corp., challenges the New York City Commercial Rent Tax deficiency assessed against it by respondent City of New York Finance Administration for the period June 1, 1969 to May 31, 1972. Primarily, petitioner challenges as arbitrary, unreasonable and otherwise unlawful the determination that it was not entitled to a rent deduction for "premises used for air transportation purposes" (Administrative Code of City of New York, § L46-4.0).

The term "premises used for air transportation purposes" is defined as "[t]he portion of any premises, located within an airport or within an air transportation terminal shared by more than one air line, of any person actually operating an air line as a common carrier, used by such person for normal or necessary air transportation purposes" (Administrative Code, § L46-1.0, subd 9). There is no dispute that petitioner did not own or actually operate aircraft during the period for which the deficiency was assessed. Indeed, under Civil Aeronautics Board regulations, petitioner was not permitted to do so. Petitioner did offer an air shipment service to the public, delivering cargo to and recovering it from the airlines. Based upon the evidence adduced at the hearing, respondent rationally could conclude that petitioner was not "actually operating an air line as a common carrier" during the audit period. And, in light of the definition of premises entitled to a rent deduction, respondent's determination cannot be termed unreasonable.

We have examined petitioner's remaining contentions and find them to be without merit.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

Judgment affirmed, with costs, in a memorandum.


Summaries of

Emery Air Freight Corporation v. Tishelman

Court of Appeals of the State of New York
Nov 24, 1981
431 N.E.2d 636 (N.Y. 1981)
Case details for

Emery Air Freight Corporation v. Tishelman

Case Details

Full title:EMERY AIR FREIGHT CORPORATION, Appellant, v. HARRY S. TISHELMAN, as…

Court:Court of Appeals of the State of New York

Date published: Nov 24, 1981

Citations

431 N.E.2d 636 (N.Y. 1981)
431 N.E.2d 636
447 N.Y.S.2d 151

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