
    Sisters of Saint Joseph, Respondent, v City of New York et al., Appellants, et al., Defendant.
    Argued January 8, 1980;
    decided February 14, 1980
    
      POINTS OF COUNSEL
    
      Allen G. Schwartz, Corporation Counsel (Linda K. Nealon and Leonard Olarsch of counsel), for appellants.
    I. The lower courts’ failure to recognize that section 421 of the Real Property Tax Law prohibits exemption when a gain above the costs of carrying, maintenance and depreciation is realized on the leasing of a property, constitutes error. (People ex rel. Mizpah Lodge No. 518 of Ind. Order of Odd Fellows v Burke, 228 NY 245; People ex rel. Unity Cong. Soc. of City of N. Y. v Mills, 189 Misc 774; People ex rel. Frick Collection v Chambers, 196 Misc 1026, 276 App Div 891.) II. The Tax Commission properly denied the exemption although the property is owned and used for exempt purposes by exempt entities because plaintiff failed to prove that there would be no profit received for the use of the property above carrying, maintenance and depreciation charges as it was required to show under subdivision 2 of section 421 of the Real Property Tax Law. (Matter of New York Cardiac Center v Kondzielaski, 53 AD2d 671; Matter of American Bible Soc. v Lewisohn, 48 AD2d 308, 40 NY2d 78; Matter of Town Hall v Tax Comm. of City of N. Y., 18 AD2d 629; Matter of St. Francis Preparatory School v Kaplan, 61 AD2d 1050.) III. Plaintiffs assertion that section 421 of the Real Property Tax Law violated the New York State Constitution, which was not reached by the courts below, is without merit in that section 1 of article XVI of the New York State Constitution, passed in 1938, prohibits the alteration or repeal of religious, charitable or educational exemptions, as defined by law, and the Legislature defined that law to broaden the definition of what is an exempt use of property to include nonowner use thereof. (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of American Bible Soc. v Lewisohn, 40 NY2d 78; People ex rel. Unity Cong. Soc. of City of N. Y. v Mills, 189 Misc 774; People ex rel. Frick Collection v Chambers, 196 Misc 1026, 276 App Div 891; People ex rel. Young Men’s Assn. for Mut. Improvement in City of Albany v Sayles, 32 App Div 197, 157 NY 677; Walz v Tax Comm., 397 US 664.)
    
      John H. Kearney, Denis M. Hurley, Richard J. Cea and Kevin M. Kearney for respondent.
    I. The courts below were correct in holding that plaintiff was entitled to tax exemption under paragraph (a) of subdivision 1 of section 421 of the Real Property Tax Law and that subdivision 2 of section 421 did not apply to this case. (People ex rel. Frick Collection v Chambers, 196 Misc 1026, 276 App Div 891; Matter of Pace Coll. v Boyland, 4 NY2d 528; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 NY2d 350; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; People ex rel. Doctor’s Hosp. v Sexton, 267 App Div 736, 295 NY 553.) II. The application of subdivision 2 of section 421 of the Real Property Tax Law urged by the city violates the New York State Constitution and the Constitution of the United States. (Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; Matter of Watchtower Bible & Tract Soc. v Lewisohn, 35 NY2d 92; American Press v Lewisohn, 74 Misc 2d 562, 48 AD2d 798; Matter of Domestic & Foreign Missionary Soc. of Protestant Episcopal Church in U. S. of Amer. v Lewisohn, 38 NY2d 708; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Walz v Tax Comm., 397 US 664.) III. No triable issue of fact was raised in plaintiff’s motion for summary judgment; a question of law only was presented which was correctly resolved by the courts below. IV. A "profit” realized by Catholic Charities on its lease to builders would not deprive plaintiff of its tax exemption. (Gospel Volunteers v Village of Speculator, 33 AD2d 407, 29 NY2d 622; Matter of St. Francis Preparatory School v Kaplan, 61 AD2d 1050.) V. The arguments of amicus and of the city appellant are based upon assumptions not justified by the facts before this court. (Gospel Volunteers v Village of Speculator, 29 NY2d 622.)
    
      Robert Abrams, Attorney-General (Shirley Adelson Siegel, Bernard Toomin and Sharon Cuff Slater of counsel), in his statutory capacity under section 71 of the Executive Law.
    Section 421 of the Real Property Tax Law is a constitutionally reasonable and proper exercise of the power of the Legislature to define and limit tax exemptions. (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of Watchtower Bible & Tract Soc. v Lewisohn, 35 NY2d 92; Rescue Army v Municipal Ct., 331 US 549; Matter of Peters v New York City Housing Auth., 307 NY 519; New York v O’Neill, 359 US 1; United States v Jin Fuey Moy, 241 US 394; Buttfield v Stranahan, 192 US 470; Easley v New York State Thruway Auth., 1 NY2d 374; Matter of Spielvogel v Ford, 1 NY2d 558; Matter of Davis v Board of Elections of City of N. Y., 5 NY2d 66.)
    
      Robert L. Beebe and Stephen J. Harrison for State Board of Equalization and Assessment, amicus curiae.
    
    I. The courts below misinterpreted the meaning of subdivision 2 of section 421 of the Real Property Tax Law. (People ex rel. Young Men’s Assn. for Mut. Improvement in City of Albany v Sayles, 32 App Div 197, 157 NY 677; People ex rel. Unity Cong. Soc. of City of N. Y. v Mills, 189 Misc 774; People ex rel. Frick 
      
      Collection v Chambers, 196 Misc 1026, 276 App Div 891; Matter of Pace Coll. v Boyland, 4 NY2d 528.) II. The provisions of subdivision 2 of section 421 of the Real Property Tax Law are constitutional. (Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; People ex rel. Frick Collection v Chambers, 196 Misc 1026, 276 App Div 891; People ex rel. Unity Cong. Soc. of City of N. Y. v Mills, 189 Misc. 774.)
   OPINION OF THE COURT

Jasen, J.

In this declaratory judgment action, the question posed for our consideration is whether property owned by a religious and charitable organization and leased to another charitable organization is subject to taxation if the rental income derived from such property exceeds the carrying, maintenance and depreciation charges thereon, even if the property is used exclusively for tax-exempt purposes by the lessee thereof. To resolve this issue, we are required to construe the statutory language embodied in subdivision 2 of section 421 of the Real Property Tax Law.

Plaintiff Sisters of Saint Joseph, a Roman Catholic order of nuns, owns certain property located on St. Marks Avenue in Brooklyn, New York. The property is improved by a three-story brick building and was used by plaintiff as a convent until 1973. While used as a convent, the property was granted tax-exempt status.

In August of 1973, plaintiff leased the subject premises to Catholic Charities of the Diocese of Brooklyn for a period of five years. The lease provided that the premises were to be used as a senior citizens’ center, that Catholic Charities was not obligated to pay rent, and that any improvements to the building were to become the property of plaintiff. Catholic Charities, like plaintiff, is a nonprofit corporation engaged in charitable activities.

Thereafter, in February, 1974, Catholic Charities sublet the property, with minor exceptions, to the Builders for the Family and Youth of the Diocese of Brooklyn (Builders), a tax-exempt corporation funded through various governmental agencies, for a five-year term, with an option for an additional five-year period. The sublease required that Catholic Charities convert the building into a senior citizens’ center, and, further, provided for an annual rental of $24,000 to be paid by Builders to Catholic Charities. These rental payments did not, however, inure to the benefit of plaintiff Sisters of St. Joseph.

The subject property, which had been fully exempt from real property taxation through the 1974-1975 tax year, was restored to the real property tax roll of the City of New York for the tax years commencing with 1975-1976. Plaintiff then applied to defendant City of New York Tax Commission (Commission) for an exemption. Following a hearing, the Commission, although stating that it was satisfied that plaintiff, Catholic Charities, and Builders are all religious and charitable organizations within the meaning of section 421 (subd 1, par [a]) of the Real Property Tax Law and that the property is being used for religious and charitable purposes, nevertheless denied plaintiff’s application for an exemption. It reasoned that pursuant to subdivision 2 of section 421 of the Real Property Tax Law, property leased by one exempt organization to another remains exempt only so long as the rental proceeds do not exceed the carrying, maintenance and depreciation charges of the property. Although plaintiff had submitted a statement of expenses indicating that such expenses approached or exceeded the rental proceeds, the Commission determined that certain of the expenses were improperly included or inflated. Finding that the moneys received by Catholic Charities did, in fact, exceed the actual costs permitted by statute and, thus, constituted a pecuniary gain, the Commission held that the property was properly taxable.

Thereafter, plaintiff instituted the instant action seeking a declaration that the taxes assessed and levied against the property are null and void. Plaintiff challenged both the Commission’s computation of allowable expenses and the construction afforded subdivision 2 of section 421 of the Real Property Tax Law by that agency.

Special Term granted plaintiff’s motion for summary judgment, declaring that the qualification embodied in subdivision 2 of section 421 — that rental income shall not exceed the expenses — is totally inapplicable in a case where, as here, the premises are being used by a tax-exempt organization for concededly tax-exempt purposes. In light of its disposition, Special Term did not reach plaintiff’s other contention, to wit: that its account of expenses was proper and that the expenses exceeded the rental income.

On appeal, a unanimous Appellate Division affirmed, stating that "[t]he Tax Commission’s determination that the organizations involved with the property 'are all religious and charitable organizations as contemplated by Section 421(l)(a) of the Real Property Tax Law [and] that the property in question is being used for carrying out thereupon such religious and charitable purposes’, rules out the applicability of subdivision 2 of section 421 of the Real Property Tax Law.” (66 AD2d, at p 886.) Leave to appeal was granted by this court. We now reverse, in part, and remit this matter to Supreme Court, Kings County, for a hearing on the issue whether the carrying, maintenance and depreciation charges of the property exceeded the rental income.

To resolve the issue presented — namely, whether property owned by one charitable organization and leased to another charitable organization is subject to real property taxation if the rental income derived from such property exceeds the carrying, maintenance and depreciation charges thereon — it is helpful to trace the historical evolution of the statutes granting tax-exempt status to charitable organizations.

It has long been the public policy of this State to exempt property owned by religious and charitable organizations from taxation. As early as 1799, the law providing for the assessment and collection of taxes upon real and personal property contained the following exemption: "That no house or land belonging to the United States, or to the people of this State, nor any church or place of public worship, or any personal property belonging to any ordained minister of the gospel, nor any college or incorporated academy, nor any school house, court house, gaol, alms house or property belonging to any incorporated library, shall be taxed by virtue of this act.” (L 1799, ch 72.) This exemption remained substantially intact in subsequent legislative enactments (see L 1801, ch 179; L 1823, ch 262) and survived the amalgamation of these statutes. (Rev Stat of NY [1829], vol 1, ch 13, tit 1, § 4.)

In 1893, the statutory exemptions relating to property owned by a charitable organization and used for charitable purposes began to take a form similar to that now found in section 421 of the Real Property Tax Law. Chapter 498 of the Laws of 1893 provided, in pertinent part: "The real property of a corporation or association organized exclusively for the moral and mental improvement of men and women or for religious, charitable, missionary, hospital, educational, patriotic, historical or cemetery purposes, or for two or more of such purposes, and used exclusively for carrying out thereupon one or more of such purposes shall be exempt from taxation. * * * The real property of any such corporation not so used exclusively for carrying out thereupon one or more of such purposes, but leased or otherwise used for other purposes shall not be so exempt”. This language remained substantially unchanged when the Tax Law was codified (L 1896, ch 908) and was set forth in subdivision 7 of section 4 of that law.

Although this statutory section was amended on many subsequent occasions and subdivision 7 was renumbered as subdivision 6 in 1933 (L 1933, ch 470), the relevant language of this statutory provision remained virtually unchanged until 1948. During that period, the courts of this State construed the qualifying phrase "leased or otherwise used for other purposes” to mean "used for purposes other than, specifically, those of the owning corporation.” Thus, an exemption was denied where a religious or educational corporation leased its property to another religious or educational corporation, even if the property was being used by the lessee thereof for an exempt purpose and the rent was being applied to further the objectives of the owner-lessor. (See, e.g., People ex rel. Unity Cong. Soc. of City of N. Y. v Mills, 189 Misc 774; People ex rel. Frick Collection v Chambers, 196 Misc 1026, affd 276 App Div 891.)

In obvious response to this judicial interpretation (see NY Legis Ann, 1948, pp 291-293), an amendment was proposed and adopted to permit a tax-exempt organization to lease its property to another tax-exempt corporation and still retain the exemption. (L 1948, ch 622.) As far as is pertinent to this case, the amendment added the following language to subdivision 6 of section 4 of the Tax Law: "[Pjrovided, however, that the real property of any such corporation shall be fully exempt, whether such property is used by the corporation itself for the purpose or purposes for which it was organized, or whether such property is used by another exempt corporation for purposes which are exempt under this subdivision, as long as the property is devoted to exempt uses and as long as any moneys paid to the owning corporation by the using corporation do not exceed the amount of the carrying, maintenance and depreciation charges of the property”. (Id.) This qualification was explained in a memorandum submitted in support of the then proposed amendment as follows: "The limitation requiring the owning corporation not to receive more than its carrying, maintenance and depreciation charges is intended to assure that the statute cannot in any way be used to provide a profit even for tax exempt corporations.” (See NY Legis Ann, 1948, p 293.)

Thus, it appears clear that this statutory qualification that proceeds received from the property should not exceed specified charges on the property was intended to apply where, as in this case, tax-exempt organizations leased their property to other exempt organizations. The courts of this State construed the above-cited language as such. (See Masters School v Town of Greenburgh, 140 NYS2d 399; cf. Matter of Pace Coll. v Boyland, 4 NY2d 528, 532 ["subdivision 6 of section 4 of the Tax Law withholds exemption from * * * benevolent corporations to the extent that their properties are leased for other purposes (except under certain circumstances to a similarly exempt corporation)” (emphasis supplied)].)

Former subdivision 6 of section 4 of the Tax Law, for purposes relevant here, remained virtually unchanged until 1958, at which time the Real Property Tax Law was enacted. (L 1958, ch 959.) However, the qualification concerning leases of property owned by a tax-exempt corporation was retained and included in subdivision 2 of section 420 of the new law, and is identical to that now embodied in subdivision 2 of section 421 of the Real Property Tax Law.

Despite the difference in wording between former section 4 of the Tax Law and article 4 of the Real Property Tax Law, it is clear that no substantive change was intended. As stated by then Governor Harriman at the time of the recodification: "The new code is the product of years of effort on the part of the legal staff of the State Board of Equalization and Assessment and of an Assessment Advisory Committee to that Board. * * * It is hoped that the new code will serve as an impetus for reform in the substantive provisions governing real property taxation. The Board of Equalization and Assessment has contended itself with recodiñcation and the making of some procedural changes in existing laws.” (NY Legis Ann, 1958, p 496 [emphasis supplied]; see Real Property Tax Law, § 2002, subd 6 ["(t)he repeal by this chapter of section four of the tax law * * * and the re-enactment of the provisions thereof in article four of this chapter (is) intended to effectuate a continuation and restatement, without change in substance or effect, of the provisions of such laws.”].)

Accordingly, we conclude that the Legislature intended the provision in subdivision 2 of section 421 of the Real Property Tax Law — requiring that rental income not exceed specified expenses of the property — to be applicable in a situation where one tax-exempt corporation leases its property to another, even though the latter organization uses the property for what could be deemed charitable purposes. As demonstrated, subdivision 6 of section 4 of the Tax Law was so judicially interpreted, and inasmuch as the applicable provision of the Real Property Tax Law represents a codification of previously existing law, we find no reason to deviate from that prior construction. Indeed, the qualifying phrase "so long as any moneys paid for such use do not exceed the amount of the carrying, maintenance and depreciation charges of the property” as now contained in subdivision 2 of section 421 of the Real Property Tax Law has been so construed. (See Matter of St. Michael’s Protestant Episcopal Church v Kaplan, NYLJ, Feb. 17, 1977, p 10, cols 4-5 [Supreme Ct, NY County]; see, also, Curtiss, Tax Exemption of Educational Property in New York, 52 Cornell LQ 551, 566.)

Moreover, even without the benefit of this legislative history, we would construe the very language of subdivision 2 of section 421 of the Real Property Tax Law as being specifically applicable where one tax-exempt organization leases its property to another. This section begins with the following language: "If any portion of such real property is not so used exclusively [by the owner-organization] to carry out thereupon one or more of such [tax-exempt] purposes but is leased or otherwise used for other purposes, such portion shall be subject to taxation and the remaining portion only shall be exempt.” (Emphasis supplied.) It must be stressed that this opening language is phrased in the disjunctive; thus, two occurrences could possibly serve as the grounds for disqualification: (a) that the property is leased; or (b) that the property is used by the owner-organization for other than tax-exempt purposes.

The courts below, however, construed this introductory language as making the entire subdivision inapplicable where one tax-exempt organization leases its premises to another such organization and the property is used by the lessee thereof for tax-exempt purposes. Such an interpretation not only ignores the plain wording of the statute, but, in addition, renders meaningless the balance of the subdivision which contains provisions specifically exempting leased property where it is used "for purposes which are exempt pursuant to this section [Real Property Tax Law, § 421] * * * by another [tax-exempt] corporation * * * provided * * * that such real property shall be exempt from taxation only * * * so long as any moneys paid for such use do not exceed the amount of the carrying, maintenance and depreciation charges of the property”. Clearly, the Legislature could not have intended such a result.

Plaintiff maintains, however, that even if this court concludes, as we now do, that subdivision 2 of section 421 of the Real Property Tax Law is specifically applicable to a situation where one tax-exempt organization leases its property to another for use by the latter for tax-exempt purposes, and, thus, rental income may not exceed the amount of the carrying, maintenance and depreciation charges of the property in order to qualify for an exemption, it is nevertheless entitled to an exemption because Catholic Charities, and not plaintiff, is the recipient of the rental payments. We cannot agree.

While it may appear harsh to hold an owner liable for real property taxes when it derives no pecuniary benefits from the demised premises, this result is mandated in this case, for a contrary holding would allow a tax-exempt organization in the future to lease its property to another tax-exempt organization with the expectancy that such organization would sublease the property and obtain a profit from the rental proceeds. This court will not construe subdivision 2 of section 421 of the Real Property Tax Law in such a manner as to establish a tax loophole, for the Legislature could not have intended its express mandate to be so easily circumvented.

This is not to say, or even intimate, that plaintiff harbored an intent to escape tax liability by employing such tactical maneuvers, for a review of the record supports a contrary conclusion. However, this court simply cannot consider this a factor in our decision, for submission to what one may consider an appealing factual situation often results in the establishment of an unsound rule of law. In addition, it should be noted that the lease between plaintiff and Catholic Charities expressly provided that the latter “shall not assign or sublet the demised premises, or any part thereof, without the written consent of [plaintiff].” Thus, plaintiff retained control over the premises, and could have refused to give its consent to the subletting of the property given the proposed terms of the lease, thereby maintaining the tax-exempt status of the property.

One further point requires comment. Plaintiff contends that if subdivision 2 of section 421 of the Real Property Tax Law is construed as imposing upon it tax liability, the statute, as applied, should be declared unconstitutional. Plaintiff maintains that the statute would violate its right to exercise freely its religion (US Const, 1st Amdt; NY Const, art I, § 3), and also would run counter to the express constitutional mandate that tax “[e]xemptions may be altered or repealed except those exempting real or personal property used exclusively for religious, educational or charitable purposes as defined by law and owned by any corporation or association organized or conducted exclusively for one or more of such purposes and not operating for profit.” (NY Const, art XVI, § 1.) We find these arguments unpersuasive.

The imposition of real property taxes, under the circumstances of this case, simply does not infringe upon plaintiff’s right to practice freely its religion. Plaintiff does not now contend, nor could it, that the taxation of its real property, leased to another, in any way prevents plaintiff from freely and openly exercising its religious beliefs. Indeed, the very existence of the lease itself militates against a finding that the property in question was to be used for the practice of plaintiff’s religion.

Plaintiff’s remaining contention — that subdivision 2 of section 421 of the Real Property Tax Law works to repeal a tax exemption to which plaintiff is constitutionally entitled (NY Const, art XVI, § 1) — cannot withstand analysis. As previously noted, when section 1 of article XVI of the New York Constitution became effective in January of 1939, the applicable tax statutes as interpreted by the courts of this State did not allow for an exemption where a tax-exempt organization leased its property to another such organization. Thus, subdivision 2 of section 421 of the Real Property Tax Law works to bestow upon tax-exempt organizations an additional benefit which is not constitutionally mandated. Therefore, it is inconceivable that the Legislature, having granted an additional benefit, is without the power to restrict that benefit without offending the State Constitution.

For the reasons stated, the order of the Appellate Division should be modified, and the case remitted to Supreme Court, Kings County, for a hearing in accordance with this opinion, and, as so modified, is affirmed.

Gabrielli, J.

(dissenting). I respectfully dissent. This is an action brought by the Sisters of St. Joseph, a religious and charitable organization, seeking a declaration that certain real property owned by the order and used for charitable purposes by another charitable organization is entitled to an exemption from real property taxation pursuant to section 421 of the Real Property Tax Law. The property was leased to Catholic Charities of the Diocese of Brooklyn, another charitable organization, for use as a senior citizens’ center, plainly a charitable use. No rent is charged Catholic Charities by the Sisters of St. Joseph. Catholic Charities, in turn, has leased the property to Builders for the Family and Youth of the Diocese of Brooklyn, which is also a charitable organization and which is to actually operate the senior citizens’ center. That lease requires Catholic Charities to make certain modifications to the building so as to make it suitable for use as a senior citizens’ center. In return, Builders is required to pay Catholic Charities a rental intended to reimburse Catholic Charities for the cost of the renovations and for leasehold amortization. Today, the majority of this court holds that this payment renders the property subject to taxation. I disagree and vote to sustain the determination made by both the Appellate Division and Supreme Court that the property is exempt.

Section 421 (subd 1, par [a]) of the Real Property Tax Law provides in pertinent part as follows: "Real property owned by a corporation or association organized or conducted exclusively for religious [or] charitable * * * purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section” (emphasis added). The other subdivisions of section 421 establish certain additional criteria for determining whether a particular piece of property is exempt from taxation. The property which is the subject of the instant litigation clearly meets all requirements for an exemption except, according to a majority of this court, those provided by subdivision 2 of section 421. Subdivision 2 begins by declaring that "[i]f any portion of such real property is not so used exclusively to carry out thereupon one or more of such purposes but is leased or otherwise used for other purposes, such portion shall be subject to taxation” (emphasis added). The subdivision then goes on to list certain situations in which even property which is so used may be exempt from taxation. The courts below have concluded that subdivision 2 is inapplicable to this property since it is used by a charitable organization for charitable purposes, and is neither leased for other purposes nor otherwise used for other purposes. For obvious and eminently sound legal reasons, I agree. Dispositive of this case is the phrase "leased or otherwise used for other purposes”, since property which may not be so described is entitled to an exemption pursuant to subdivision 1 if it meets the other statutory requirements, as does this property. It is only property which is "leased or otherwise used for other purposes” which may not be entitled to the exemption if it falls within the ambit of subdivision 1 (emphasis added). The majority of this court would interpret that phrase as if it excluded property which is "leased for any purpose, including an exempt purpose, or otherwise used for other purposes”. I cannot concur in the decision to add to the statutory language a concept which has not been placed therein by the Legislature. As it is, the statute refers to land which is leased for some other (i.e., nonexempt) purpose or which is otherwise used for some other (i.e., nonexempt) purpose. Such is the plain meaning of the statutory language, and I deem it an improper exercise of judicial authority to go beyond that clear language. Since this property is not leased for a nonexempt purpose, but rather is leased to an exempt organization for an exempt purpose, I agree with both courts below that it is entitled to an exemption.

Nor do I find the authority cited by the majority to be relevant to the interpretation of this statute. The cases cited by the majority refer to an earlier version of the statute which contained quite different language. Thus, the statute interpreted in both People ex rel. Unity Cong. Soc. of City of N. Y. v Mills (189 Misc 774) and People ex rel. Frick Collection v Chambers (196 Misc 1026, affd 276 App Div 891), unlike section 421, provided no exemption whatsoever for leased property. Hence, those cases can shed no light upon the present statutory language. Especially is this so since the present language is so very unambiguous. Similarly, I find the majority’s references to legislative history somewhat puzzling, both because such a tool of statutory interpretation is useful only when the statutory language is unclear and because the legislative history does not speak specifically to the type of situation we are confronted with today.

There exists, moreover, an alternative rationale for concluding that this property is exempted from real property taxation by section 421. Even were I to agree that subdivision 2 precludes an exemption for property rented at a profit by the exempt owner of that property to another exempt organization for an exempt purpose, that subdivision would still be inapplicable in the instant case since here the owner of the property, the Sisters of St. Joseph, does not receive any rental for the use of the property, much less a rental that exceeds "the carrying, maintenance and depreciation charges of the property” (Real Property Tax Law, § 421, subd 2). Rather, any profit, if indeed any profit is contained in this rental, is to be received not by the owner of the property and the association now subject to taxation, but rather by Catholic Charities, the sublessor. Clearly, the language of the statute simply does not bar an exemption unless a profitable rent is received by the owner-lessor of the property, even assuming that the majority’s interpretation of the first clause of subdivision 2 is correct. The majority seeks to avoid this result by characterizing it as a loophole (p 441), but in so doing is itself rewriting the statute to plug up what it believes to be a loophole. I do not find this reasoning persuasive, since it is quite reasonable to assume that even if the Legislature desired to tax the charitable owner of property who actually receives a profit because of the rental of that property to another charitable organization for a charitable purpose, it did not wish to so tax an owner who in fact receives no profit from the rental. Since such an interpretation is supported by the clear language of the statute, the subdivision should be so applied by the court.

Quite apart from the legal infirmity of the holding by the majority in this case, the decision reached today does grave injustice to the plaintiff organization which has devoted its resources and energies solely for charitable purposes, as have the two other charitable organizations herein involved. It is most unfortunate that the consequences of the majority’s determination may well portend serious inroads on the status justifiably enjoyed by charitable and religious organizations of all faiths.

Accordingly, I vote to affirm the order appealed from.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur with Judge Jasen; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judge Meyer concurs.

Order modified, with costs to appellants, and the case remitted to Supreme Court, Kings County, for a hearing in accordance with the opinion herein and, as so modified, affirmed. 
      
      . The sublease was later amended by agreement to commence on April 1, 1974, and to run for a five-year period therefrom.
     
      
      . Section 421 (subd 1, par [a]) of the Real Property Tax Law provides: "Real property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, moral or mental improvement of men, women or children or cemetery purposes, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes either by the owning corporation or association or by another such corporation or association as hereinafter provided shall be exempt from taxation as provided in this section.”
     
      
      . Section 421 (subd 2) of the Real Property Tax Law states: "If any portion of such real property is not so used exclusively to carry out thereupon one or more of such purposes but is leased or otherwise used for other purposes, such portion shall be subject to taxation and the remaining portion only shall be exempt; provided, however, that such real property shall be fully exempt from taxation although it or a portion thereof is used (a) for purposes which are exempt pursuant to this section or sections four hundred twenty-two, four hundred twenty-four, four hundred twenty-six, four hundred twenty-eight [footnote omitted] four hundred thirty or four hundred fifty of this chapter by another corporation which owns real property exempt from taxation pursuant to such sections or whose real property if it owned any would be exempt from taxation pursuant to such sections, (b) for purposes which are exempt pursuant to section four hundred eight of this chapter by a corporation which owns real property exempt from taxation pursuant to such section or if it owned any would be exempt from taxation pursuant to such section, (c) for purposes which are exempt pursuant to section four hundred sixteen of this chapter by an organization which owns real property exempt from taxation pursuant to such section or whose real property if it owned any would be exempt from taxation pursuant to such section or (d) for purposes relating to civil defense pursuant to the New York state defense emergency act, including but not limited to activities in preparation for anticipated attack, during attack, or following attack or false warning thereof, or in connection with drill or test ordered or directed by civil defense authorities; and provided further that such real property shall be exempt from taxation only so long as it or a portion thereof, as the case may be, is devoted to such exempt purposes and so long as any moneys paid for such use do not exceed the amount of the carrying, maintenance and depreciation charges of the property or portion thereof, as the case may be.”
     
      
      . The Tax Department of the City of New York also construed the law as requiring that the exempt corporation itself use the premises in order to qualify for an exemption. (See NY Legis Ann, 1948, p 291.)
     