In the Matter of
Attorney Affirmation in
opposition to Motion by
Appellant for Leave to
Appeal to the Court of
-vAppellate Division Case
No. 521671
Schuyler County Index No.

State of New York }
County of Schuyler } SS.:
Steven J. Getman, an attorney, duly licensed to practice before
the courts of this state, hereby affirms the following as true
under penalty of perjury (CPLR 2016):

I am the Schuyler County Attorney, attorney of record for
respondent herein.


I make this affirmation in opposition to appellant’s motion for
leave to appeal to the Court of Appeals from a Memorandum and
Order of the Supreme Court, Appellate Division, Third Judicial

Department, decided and entered June 9, 2016, Case No. 521671.
The aforesaid motion is returnable August 1, 2016.

The following is true to my personal knowledge and upon
information and belief, the source of same being a review of the
record on appeal in this matter, a review of appellant’s pending
motion to this Court and a review of the legal authority cited
Procedural History.


An order of Supreme Court, State of New York, County of
Schuyler (O’Shea, J., presiding), dated September 19, 2014, denied
appellant’s application, pursuant to CPLR Art. 78, to annul
respondent Schuyler County’s determination that appellant is
responsible to pay $6,102.96 in taxes under Schuyler County’s
Local Law No. 2 of 2008, “the Schuyler County Hotel or Motel
Room Occupancy Tax Law.”


By written notice, dated November 25, 2014, appellant appealed
to the Supreme Court, Appellate Division, Third Judicial



On June 9, 2016, the Appellate Division unanimously affirmed the
lower court decision (Case No. 521671) by written “memorandum
and order.”


On June 9, 2016, affirmant served the memorandum and order
with Notice of Entry upon counsel for the appellant, by depositing
a true copy of same enclosed in a postpaid properly addressed
wrapper in a post office or official depository under the exclusive
care and custody of the United States Post Office Department
within the State of New York.


On July 14, 2016, appellant’s counsel served the pending Notice of
Motion for leave to appeal upon affirmant by regular U.S. mail.
Corporate Disclosure Statement of Schuyler County.


Pursuant to Section 500(f) of the Rules of Practice of this Court,
the undersigned certifies that Schuyler County is a municipal
corporation “comprising the inhabitants within its boundaries and
formed for the purpose of exercising such powers and discharging
such duties of local government and administration of public
affairs as may be imposed or conferred upon it by law,” pursuant
to County Law § 3. Such county is, further, a political subdivision

of the State of New York. No other parents, subsidiaries and/or
affiliates exist.
Question Presented for Review.

Appellant states that the question presented for review “is
whether Schuyler County’s Local Law No. 2 may impose a local
room tax on a type of rental property which is exempted from such
taxation by New York.”


It is respectfully submitted that this question does not merit
review by this Court.


Appellant does not allege that question presents a conflict with
prior decisions of this Court, or involves a conflict among the
departments of the Appellate Division. Appellant alleges that the
issue is novel and/or of public importance.


However, rather than novel, the Appellate Division’s decision was
consistent with this Court’s prior ruling in Expedia, Inc. v. City of
New York Dep't of Fin., 22 NY3d 121 (2013), which found that the
State Constitution vests the taxing power in the state legislature
and authorizes the legislature to delegate that authority to local
governments. Further, it is respectfully submitted that no

substantial constitutional question is directly involved in this
matter. Constellation Nuclear Power Plants LLC v. Tax Appeals
Tribunal of State of New York, 26 NY3d 996 (2015).

Finally, rather than a matter of statewide importance, it is noted
that ultimately the question herein is a question of interpretation
of a local law and of an enabling statute directed at such local law.
Both the local authority and the state authorities have declined to
adopt the interpretation proffered by the appellant. As such, it is a
matter that falls within agency expertise and the construction
given these statutes by the trial court and the Appellate Division
should be upheld. Astoria Fin. Corp. v. Tax Appeals Tribunal of
State, 63 AD3d 1316 (2009). Indeed, to take up this matter would
run contrary to this Court’s philosophy of liberal construction and
expansiveness which is to be accorded to laws relating to local
governments in the administration of their local affairs. Resnick v.
County of Ulster, 44 NY2d 279 (1978).
Argument Opposing Review.


Affirmant restates each paragraph above, as if stated more

fully herein.

Affirmant further restates and incorporates all

arguments and points of law made in respondent’s appellate brief
in this case, as if set forth more fully herein.

In essence, appellant asks this Court to legislate from the

bench. As noted by the Appellate Division, the exemption that
appellant seeks to apply across all taxing jurisdictions (state and
local) “is a policy decision for the legislature.” The appellant is
asking the Court to impose a “bungalow exemption” from Schuyler
County’s local occupancy tax that does not appear in either the
local law or the enabling statute.

The primary consideration in matters of statutory interpretation
is to ascertain and give effect to the intention of the Legislature,
and such efforts begin with an examination of the statutory text
itself. Statutes § 92(a); Norse Energy Corp. USA v. Town of
Dryden, 108 AD3d 25 (2013), aff'd sub nom. Wallach v. Town of
Dryden, 23 NY3d 728 (2014).

A court cannot, through

construction, enact an intent the legislature totally failed to
express. Perkins v. Merchants Mut. Ins. Co., 82 Misc2d 157 (1975)
aff’d 50 AD2d 1070, aff’d 41 NY2d 394 (1977). Where the words of
a statute have a definite and precise meaning, the court should

not search elsewhere to restrict or extend that meaning. Erie
County Agric. Soc. v. Cluchey, 40 NY2d 194 (1976). Further, tax
exemption statutes should be construed strictly against the
taxpayer seeking the benefit of the exemption. Ass'n of the Bar of
City of New York v. Lewisohn, 34 NY2d 143 (1974).

Schuyler County imposes a four percent (4%) local tax upon the
rent for every occupancy of a room or rooms in a hotel, motel, bed
and breakfast or tourist facility having one or more rooms in the
county. This local tax was instituted under the authority of Tax
Law § 1202-i1 (“the enabling statute”) and Local Law No. 2 of the
Year 1988 (“the local law”), as amended most recently in 2008.
This local tax is in addition to the state taxes imposed on such


Neither the statutory text of the local law nor the state enabling
legislation contains the “bungalow exemption” that appellant
seeks to impose herein.


The enabling statute specifically empowered Schuyler County “to
adopt and amend local laws imposing in such county a tax, in

Appellant mistakenly refers to the enabling statute at various places
in his motion papers as “Tax Law § 1201-i.”


addition to any other tax authorized and imposed pursuant to this
article, such as the legislature has or would have the power and
authority to impose upon persons occupying hotel or motel rooms
in such county. Tax Law § 1202-i (1).

As appellant concedes, the enabling legislation defines “hotel” and
“motel” broadly. For the purposes of the legislation, “the term
‘hotel’ or ‘motel’ shall mean and include any facility providing
lodging on an overnight basis and shall include those facilities
designated and commonly known as ‘bed and breakfast’ and
‘tourist’ facilities.” Tax Law § 1202-i (1).


The enabling statute specifies that the Schuyler County tax is a
locally administered one. Tax Law § 1202-i (2)


The enabling statute contains several exemptions from the local
tax, none of which relate to “bungalows”:

The State of New York, or any public corporation (including
a public corporation created pursuant to agreement or
compact with another state or the Dominion of Canada),
improvement district or other political subdivision of the


The United States of America, insofar as it is immune from


Any corporation or association, or trust, or community chest,
fund or foundation organized and operated exclusively for
religious, charitable or educational purposes, or for the
prevention of cruelty to children or animals, and no part of
the net earnings of which inures to the benefit of any private
shareholder or individual and no substantial part of the
activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that
nothing in this paragraph shall include an organization
operated for the primary purpose of carrying on a trade or
business for profit, whether or not all of its profits are
payable to one or more organizations described in this

Tax Law § 1202-i (5).

The enabling legislation also exempts permanent residents of a
hotel or motel, defining same as “a person occupying any room or


rooms in a hotel or motel for at least thirty consecutive days.” Tax
Law § 1202-i (1)

The above exemptions are mirrored in the local law. As noted
above, like the enabling legislation, the local law contains no
“bungalow exemption.”


It is a well-settled rule of statutory construction that when one or
more exceptions are expressly made in a statute, it is a fair
inference that the legislature intended that no other exceptions
should be attached to the act by implication. Hering v. Clement,
133 AD 293 (1909) aff’d 196 NY 218 (1909). Accordingly, there is
no basis to impute, as appellant does, an exception that does not
exist in either statute.


The bungalow exemption that appellant seeks to impose is
contained in 20 NYCRR 527.9. 20 NYCRR 527.9 addresses state
“sales taxes” on bungalows and hotels, but has no application to
Tax Law § 1202-i or to the local law. It interprets Tax Law § 1105
(e) and applies only to state and local sales taxes “that are
administered by the Commissioner of Taxation and Finance.” 20


NYCRR 527.9(a) (2) (i). These are taxes that are collected at the
state level by the Commissioner. Tax Law § 1148.

Appellant argues that 20 NYCRR 527.9 should apply to both
state-administered taxes and locally-administered taxes. If this
were the case, however, there would be no need for the qualifier in
20 NYCRR 527.9(a) (2) (i), stating that the regulation applies to
taxes “that are administered by the Commissioner of Taxation and
Finance.” Instead, the section would simply read, “reference to tax
includes the state and local sales taxes that are imposed on rent
received for hotel occupancy under article 28 and pursuant to the
authority of article 29 of the Tax Law.”










interpretation of the state “bungalow exception” in 20 NYCRR
527.9 “does not address the taxability of… charges under a hotel
occupancy tax imposed and administered by a locality itself.”
State of New York, TSB-A-15(38) S, 2015 WL 8680280.


Commissioner has further advised that local occupancy taxes,
such as Schuyler County’s, are “administered locally” and
questions or interpretations regarding same should be referred to

the local taxing jurisdiction. Hotel and Motel Occupancy, Tax
Bulletin ST-331 (TB-ST-331) (May 9, 2012).

Insofar as the agency promulgating the regulation has stated that
the regulation is inapplicable to local taxes such as the one at
issue, there is no basis for a court to assume it was intended to
apply to the Schuyler County local tax.


Appellant’s reliance in his motion papers upon Castle Oil Corp. v.
City of New York, 89 NY2d 334 (1996), is misplaced. In Castle Oil
Corp., the State Legislature specifically repealed (by amendment)
the enabling legislation relied upon by the municipality for its
local law.

The municipality did not argue that the enabling

statute had not been amended or repealed. Instead, the
municipality argued, “that since [the] local law…was authorized
when enacted, it remains enforceable notwithstanding the
subsequent repeal of its predicate state law provision.” Castle Oil
Corp., supra.

In the case at hand, no such legislative repeal occurred. Instead,
as noted above, appellant has seized upon a regulation directed at





argued that


regulation, despite its plain meaning and despite admonishments
by the Commissioner to the contrary, somehow applies to the local
tax at issue.





that appellant

argues that


Commissioner’s regulations must override the plain meaning of
the enabling legislation, and thereby prevent the state legislature
from imposing this tax (or authorizing Schuyler County to do so),









determination of what articles or transactions are taxable is a
legislative function. NY Const. art. III, § 1; Young v. Gerosa, 11
AD2d 67 (1960).

In sum, the appellant argues that this Court should ignore the
plain meaning of the enabling statute, ignore the plain meaning of
the local law and create an exemption based upon a regulation
interpreting a different statute; a regulation that even the
Commissioner of Taxation has declined to extend to locally
administered taxes such as the one at issue.



For all the reasons set forth herein and in the memorandum and
order of the Appellate Division, it is respectfully submitted that
this Court should decline to hear appellant’s appeal. Accordingly,
appellant’s motion for leave to appeal should be denied in all


Watkins Glen, New York
July 26, 2016
Respectfully submitted,
Steven J. Getman
Schuyler County Attorney
105 Ninth St, Unit 5
Watkins Glen, NY 14891
Attorney for Respondent

To: Clerk of the Court
New York State Court of Appeals
20 Eagle Street
Albany, New York 12207
Diane V. Bruns, Esq., Schlather, Stumbar, Parks & Salk,
PO Box 353,
Ithaca, NY 14851-0353,
attorneys for appellant.