Opinion
June 27, 1977
In two consolidated proceedings pursuant to article 7 of the Real Property Tax Law, the appeals are from two orders of the Supreme Court, Westchester County, one as to each consolidated proceeding, both dated November 16, 1976, which denied the motions of appellants to strike the proceedings from the calendar for failure to comply with section 678.3 of the rules of this court ( 22 NYCRR 678.3). Orders affirmed, with one bill of $50 costs and disbursements to cover both appeals. Section 678.3 of the rules of this court provides, in part, that a tax assessment review proceeding shall not be added to any tax certiorari calendar unless the note of issue contains a statement as to whether the property involved is income producing. Petitioners-respondents own and operate the subject property, upon which is a Macy's department store. Petitioners, in filing the note of issue for the instant proceedings, stated that the subject property was not income producing. Appellants moved, pursuant to section 678.3, to strike the proceedings from the calendar on the grounds that the subject property is income producing and that no statement of the income and expenses of the property was submitted as required by subdivision (b) of the said section. The section in question was enacted to expedite tax review proceedings. It did not change the existing law that the language "income producing" applies only to income produced directly by the real estate, and not to income generated by a commercial business conducted thereon. Hopkins, J.P., Shapiro, Hawkins and Suozzi, JJ., concur.