Opinion
January 23, 1996
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).
The IAS Court properly determined that plaintiff was not a "utility" and therefore, not subject to Tax Law § 186-a since that term, as defined in relevant part in subdivision (2) (a) of the statute, requires the service provided to be by or through "wires". The service provided by plaintiff was classified by the Federal Communications Commission as communication by "radio" rather than by "wire". Moreover, the modern technology employed by plaintiff in providing such service was not in existence at the time the statute was enacted. Although defendants assert that the Legislature clearly intended to impose a tax on all companies in competition with regulated utilities in the selling or furnishing of services such as those provided by plaintiff, where, as here, "a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240; see, Patrolmen's Benevolent Assn. v City of New York, 41 N.Y.2d 205, 208-209). A statute "`must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise'" ( Parochial Bus Sys. v Board of Educ., 60 N.Y.2d 539, 548-549, quoting Lawrence Constr. Corp. v State of New York, 293 N.Y. 634, 639).
Concur — Rosenberger, J.P., Ellerin, Nardelli, Williams and Tom, JJ.