Opinion
December 14, 1993
Appeal from the Supreme Court, New York County [Eugene Nardelli, J.].
The determination that petitioner, a grocery wholesaler which operates in the the New York City Terminal Market (the "Hunt's Point Market") is liable for Commercial Rent Tax (Administrative Code of City of N Y § 11-701 et seq.) on payments pursuant to Article 1 (b) of the governing leases, as terminal charges for receipt of shipments that petitioner receives, typically by truck or rail, as original receiver of the goods, because such payment is for services that a lessee of similar space could reasonably demand as accompanying the lease of the demised premises (see, Matter of Debenhams, Inc. v Commissioner of Fin., N.Y. City, 117 A.D.2d 344, 350, lv denied 68 N.Y.2d 609), is supported by substantial evidence.
We do not consider petitioner's argument that the tax ordinance is unconstitutional as applied to it, since there has been no notice to the Attorney-General pursuant to Executive Law § 71 (see, Matter of Tiffany B., 111 A.D.2d 168, lv denied sub nom. Matter of Nassau County Dept. of Social Servs. v John B., 65 N.Y.2d 606, cert denied sub nom. Blake v Nassau County Dept. of Social Servs., 474 U.S. 862), and since the fact-based argument is made for the first time to this Court (see, Matter of Sherry v Corcoran, 176 A.D.2d 694). Otherwise, we would find it without merit.
We have considered petitioner's remaining arguments, and find them to be without merit.
Concur — Carro, J.P., Ellerin, Kupferman and Rubin, JJ.