Opinion
Argued September 9, 1976
Decided October 14, 1976
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Louis J. Lefkowitz, Attorney-General (Francis V. Dow and Ruth Kessler Toch of counsel), for State Tax Commission, appellant.
W. Bernard Richland, Corporation Counsel (Arnold Fox and Samuel J. Warms of counsel), for City of New York, appellant.
Charles S. Desmond for Bay View Towers Apartments, Inc., respondent.
Arnold Y. Kapiloff for Briarwood Terrace, Inc., respondent.
MEMORANDUM. Judgment of the Appellate Division affirmed, with costs. Applicable precedents establish that a mere substitution of one mortgage agreement for another, even in combination with a change of mortgagors, is insufficient to create a new mortgage for purposes of section 253 of the Tax Law ( People ex rel. Banner Land Co. v State Tax Comm., 244 N.Y. 159, esp 162-163; Matter of Suffolk County Fed. Sav. Loan Assn. v Bragalini, 5 N.Y.2d 579, 583, 585). People ex rel. Williamsburgh Sav. Bank v State Tax Comm. ( 245 N.Y. 414, 418) is distinguishable: there the new mortgage agreements explicitly constituted a "satisfaction" of the original mortgage.
Since no "new" mortgages were created in this case, there is no need to examine the statutory exemption for supplemental mortgages insofar as it might require an antecedent provision in the prior mortgage to justify exemption (Tax Law, § 255).
If attenuated analysis, supported by the precedents, is required, the fault is the statutory language. The remedy for that fault is legislative clarification or correction.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Judgment affirmed.