City of New York v. Tully — 55 N.Y.2d 960

Majority

p. 960

In the Matter of the City of New York, Respondent, v James H. Tully et al., Constituting the State Tax Commission, Respondents, and 77 West 55th Street Associates, Appellant.

Argued January 11, 1982;

decided February 16, 1982

p. 961

APPEARANCES OF COUNSEL

Martin B. Cowan and Wayne R. Lehrhaupt for appellant.

p. 962

Frederick A. 0. Schwarz, Jr., Corporation Counsel {Arnold Fox and GaleZareko of counsel), for City of New York, respondent.

Robert Abrams,- Attorney-General {Francis V. Dow and Shirley Adelson Siegel of counsel), for State Tax Commission, respondent.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the determination of the State Tax Commission is reinstated.

We find no error in the determination of the State Tax Commission that the mortgage agreement in question was a supplemental mortgage within the purview of section 255 of the Tax Law and did not create a new or further indebtedness or obligation. The commission found that the agreement did not change the creditor, the maturity or interest rate, but instead it changed only the collateral. Hence, no additional mortgage tax was due upon the recording of this agreement. It is significant that the release of the leasehold from the lien did not occur before the fee was added to the security for the principal indebtedness. Additionally, we note that respondent taxpayer is not entitled to interest on its refund from the time of payment of the tax (Matter of Brodsky v Murphy, 25 NY2d 518 ).

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in a memorandum; Judge Jasen taking no part.

Judgment reversed, etc.

Cases cited

Brodsky v. Murphy 25 NY2d 518 N.Y. 1969-12-11 p. 962