Opinion
Decided May 11, 1993
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Leonard N. Cohen, J.
Robert Abrams, Attorney-General, Albany (Vincent Leong of counsel), for New York State Department of Taxation and Finance and another, appellants.
O. Peter Sherwood, Corporation Counsel of New York City (Frances J. Henn of counsel), for City of New York and others, appellants.
Wein, Malkin Bettex, New York City (Marcia E. Kusnetz of counsel), 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 Fin., 80 N.Y.2d 657, 661). The taxing of the ERIF payments as a sale of utility services under Tax Law § 1105 (b) was therefore improper.
Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., and BELLACOSA concur; Judge SMITH taking no part.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.