Opinion
Argued October 15, 1979
Decided November 15, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MARTIN EVANS, J.
Allen G. Schwartz, Corporation Counsel (Leonard Olarsch and Steven Forrest Jackson of counsel), for appellant. Jeffrey S. Cook, Alan M. Epstein and Donald P. Kelley for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The nature of plaintiff's business is sufficiently described in Quotron Systems v Gallman ( 39 N.Y.2d 428), which held that it could not be taxed as a utility. A fair reading of Matter of Crystal v City of Syracuse ( 38 N.Y.2d 883, affg 47 A.D.2d 29), Matter of Metropolitan Bank of Syracuse v Department of Assessment of City of Syracuse ( 44 N.Y.2d 864, affg 57 A.D.2d 1055) and Matter of Crossman Cadillac v Board of Assessors of County of Nassau ( 44 N.Y.2d 963, affg 60 A.D.2d 842) is that section 102 (subd 12, par [d]) of the Real Property Tax Law is "aimed principally at expanding the definition of real property with respect to utility companies" (44 N.Y.2d, at p 964) and that otherwise telephone and telegraph equipment will be taxable as realty only if it is "`incorporated as part of the real estate'" (id., at p 965). Bearing in mind the well-settled rule that ambiguities in tax statutes are to be construed most strongly in favor of the taxpayer and against the government (Quotron Systems v Gallman, supra, at p 431; McKinney's Cons Laws of NY, Book 1, Statutes, § 313, subd c), we have held in Crystal, Crossman and Metropolitan Bank that portable plug-in telephones, movable office telephone systems and portable bank vault alarms are not real property within the meaning of the descriptive phrase of section 102 (subd 12, par [d]) of the Real Property Tax Law: "Telephone and telegraph lines, wires, poles and appurtenances". While we recognize that People ex rel. Holmes Elec. Protective Co. v Chambers ( 1 Misc.2d 990, affd 285 App. Div. 886, affd 1 N.Y.2d 760) is closely akin to the instant fact situation, it must be deemed to have been overruled by the later cases referred to above, which refused to recognize as appurtenances to telegraph or telephone lines movable equipment similar to that here involved.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order affirmed.