Opinion
March 23, 1993
Appeal from the Supreme Court, New York County [Ira Gammerman, J.].
The Commissioner properly exercised her discretionary authority to adjust the allocation formula so as to exclude construction in progress from the property factor because of its inherent inability to generate income (see, Administrative Code of City of N.Y. § 11-604 [8]; Matter of Barney's, Inc. v. Department of Fin., 93 A.D.2d 642, affd 61 N.Y.2d 786). Application of Policy Bulletin 5-84 was a valid exercise of discretion and, since the Bulletin is neither a rule nor regulation, it need not have complied with the promulgation requirements of New York City Charter former § 1105 (present § 1041 et seq.).
Concur — Sullivan, J.P., Wallach, Kupferman and Rubin, JJ.