
    In the Matter of Hartley Holding Corp., Appellant, v. Hortense W. Gabel, as City Rent and Rehabilitation Administrator, Respondent.
    Argued November 21, 1963;
    decided December 30, 1963.
    
      Robert S. Garson for appellant.
    I. Assessed value is not full value. (People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126; Bucho Holding Co. v. Temporary State Housing Rent Comm., 11 N Y 2d 469.) II. The normal certiorari test of assessed value will only require full value to be fixed if assessed value is greater than full value. (Matter of Seagram & Sons v. Tax Comm. of City of N. Y., 18 A D 2d 109.) III. A finding of the validity of the use of assessed value as creating an absolute presumption of value is a necessary prerequisite to an attack on assessed value as being below true value. IV. The State could not have fixed value in New York City by an arbitrarily different rule of thumb than that used to establish value outside New York City. The State can give the city no greater power than it has, nor may the State, by giving rent control to the city, evade the constitutional inhibition against unreasonable classification or discrimination. V. The use of assessed value to create an absolute presumption of value is arbitrary, capricious and discriminatory as applied within New York City.
    
      Florence R. Zimmerman and Beatrice Shainswit for respondent.
    I. The city statute, fully authorized by the Home Buie Article of the New York Constitution and the State Legislature, allows for a fair return and is not discriminatory; the wisdom of the City Council presents no justiciable issue. (Bucho Holding Co. v. Temporary State Housing Rent Comm., 11 N Y 2d 469.) II. A statutory formula for net return and a statutory definition of value have heretofore been reviewed and upheld. (Teeval Co. v. McGoldrick, 304 N. Y. 859; Matter of Four Maple Drive Realty Corp. v. Abrams, 2 A D 2d 753, 2 N Y 2d 837, 355 U. S. 14; Matter of Baldwin Gardens v. Weaver, 2 A D 2d 753, 2 N Y 2d 707; I. L. F. Y. Co. v. Temporary State Housing Rent Comm., 10 N Y 2d 263; I. L. F. Y. Co. v. City Rent & Rehabilitation Administration, 11 N Y 2d 480.) III. For rent control net return proceedings, “value” may be legislatively defined. (Matter of Realty Agency v. Weaver, 7 N Y 2d 249; Matter of Town of Lewiston v. State Bd. of Equalization & Assessment, 3 AD 2d 498; Matter of Hotel Assn. of N. Y. C. v. Weaver, 3 N Y 2d 206; Allied Stores of Ohio v. Bowers, 358 U. S. 522; Day-Brite Light. v. Missouri, 342 U. S. 421; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126.) IV. The wisdom of the City Council, duly empowered, presents no justiciable issue. (Sproles v. Binford, 286 U. S. 374.) V. The Home Buie Article of the New York Constitution, and the specific enabling legislation by the State Legislature, fully empowered the city to adopt its own, different rent control law, (Di Prima v. Wagner, 10 N Y 2d 728; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Matter of Molnar v. Curtin, 273 App. Div. 322, 297 N. Y. 967; People v. Lewis, 295 N. Y. 42; Lincoln Bldg. Associates v. Barr, 1 N Y 2d 413.) VI. This appeal raises no substantial constitutional issue and should be dismissed. (Bachmann v. Yew York City Tunnel Auth., 288 N. Y. 707; People ex rel. Kilgallen v. Brophy, 281 N. Y. 871.)
   Chief Judge Desmond.

On this direct appeal (former Civ. Prac. Act, § 588, subd. 4) from Special Term, Supreme Court, appellant landlord questions that part only of the New York City Local Rent Control Law (Local Laws, 1962, No. 20 of City of New York; Administrative Code of City of New York, § Y41-5.0, subd. g) which provides for a rent increase if a landlord is earning less than 6% of the value of his property, “value” being defined as current assessed value in effect at the time the application is filed. As we know, the current State rent control laws, like all State rent control laws since 1951, use for this purpose not assessed value as such but “ equalized ” assessment values. In other words, this appellant says that its constitutional rights were infringed when it was not permitted to use as the valuation base the assessed value of its property as equalized and adjusted upward to or toward “ actual” value. Respondent City Rent and Rehabilitation Administrator asks dismissal for lack of a substantial constitutional question.

Because of a long series of controlling decisions appellant is unable to make any effective assertion that it is entitled to the use of any particular formula for determining value or fair return or, indeed, that it is entitled to the use of any particular equalization rate or an equalization rate determined in any particular way. The New York State statutes from 1957 to 1961 used 1954 equalization rates but in 1961 the Legislature discontinued such use and substituted a requirement that thereafter (under the State statute) assessed values would be adjusted in accordance with the most recent available equalization rates which meant in practice that from 1961 to 1962 the 1961 equalization figure was used but, because and after the passage of the 1962 act, State rent control went back to the 1954 equalization. All this is described and explained in Bucho Holding Co. v. Temporary State Housing Bent Comm. (11 N Y 2d 469). The Bucho holding is most significant for present purposes since the Bucho opinion points out (p. 476) that going hack in 1962 to the 1954 equalization rate meant that in some parts of the State landlords would he benefited and elsewhere landlords would be hurt since equalization rates for the same type of property had between 1954 and 1962 gone down in some parts of the State and had gone up in others. We held in Bucho that this made no difference as to constitutionality of the State act. We said there (p. 477) that the fact that the 1954 equalization rates do not now reflect the full underassessment is unfortunate for the landlords in those areas but that the Legislature properly looked at the whole picture and that the effect on a particular landlord was of no constitutional significance. From the above it results that the landlord’s only argument here is that denial of equal protection of the laws results from the use of unequalized assessments in New York City and equalized assessments in those other parts of the State, such as Buffalo, where State rent control is in effect and where equalized assessments are used under State law. It is not and cannot be disputed that the Home Buie Article of the State Constitution (art. IX, § 12) makes valid the grant of authority by the State Legislature to the City of New York to enact a local rent control law the validity of which, the enabling statute says, is not to be affected by its differences from the State rent law (L. 1962, ch. 21, § 1, subd. 5).

Appellant is put to it to argue that its rights are defeated in two ways: first, that the only 11 value ” which it is allowed to use for rent increase purposes is the assessed value as fixed by the city and not subject to any attack by the property owner as being too low, and, second, that there is unconstitutional and unequal protection for New York City landlords in their inability under the local law to have the value base adjusted or equalized as is done elsewhere in the State. But there was nothing to prevent the State Legislature from recognizing that conditions in New York City are sufficiently different from other parts of the State so that a different value base formula may be used so long as that formula is not totally arbitrary and irrational. That the Legislature may validly recognize the differences in conditions between various parts of the State is illustrated by the fact that the State Legislature has eliminated various parts of the State (including cities like Albany) from any rent control at all.

In the early days of Federal rent control, the United States Supreme Court recognized that the Constitution does not require that each separate property be individually valued and held that it was not necessary to provide methods for fixing a fair rental value to each individual landlord — the Supreme Court held that, since separate fixation of reasonable rent, landlord by landlord, was impossible, a generally fair and equitable method of fixation on a class basis was adequate (Bowles v. Willingham, 321 U. S. 503, 516, 518). Appellant’s position here stands on the fallacy that an equalized assessment is necessarily closer to true value than assessed value alone. A footnote in Judge Fuld’s opinion in Bucho Holding Co. v. Temporary State Housing Rent Comm. (11 N Y 2d 469, supra) at the bottom of page 472 reminds us that an equalization rate does not purport to measure the ratio of assessed valuation to full value of any individual property.” We all know that equalization at most represents an average. An equalization rate of 50 means that by taking a certain number of properties in an area and comparing their assessments with what someone assumes to be their true value an average of 50% is arrived at, but being an average this figure is not accurate for any one particular property. On the other hand, an assessed valuation, while it may be and frequently is lower than true value (it may be higher in a given ease), is a value fixed for a particular property by public officials commanded by the State Real Property Tax Law (§ 306) to assess at full value. While the assessment of appellant’s property may not be equal to its true value the same may be said with equal force of the assessments outside New York City which, as we have held, are validly adjusted for rent control purposes by use of the 1954 equalization rate based on figures which are now more than 10 years old.

The order should be affirmed, with costs.

Van Voorhis, J.

(dissenting). This city rent law, it seems to me, is unconstitutional. Chapter 21 of the Laws of 1962 revoked the applicability of the 1961 equalization rate and restored the 1954 rates outside of New York City, empowering the city to authorize its own rent control system. The challenged city rent law, effective May 1, 1962, provides for a rent increase if a landlord is earning less than 6% of the value of his property, “ value ” being defined as current assessed value in effect at the time the application is filed.

We upheld the constitutionality of the year moratorium on rent increases of the City of New York (7. L. F. Y. Co. v. City Bent é Rehabilitation Administration, 11 N Y 2d 480), and upheld the application of the 1954 rather than the 1961 equalization rate in Bucho Holding Co. v. Temporary State Housing Bent Comm. (11 N Y 2d 469). Although in dissenting in the Bucho case, Judge Burke and I thought that the 1954 equalization rates were an anachronism having no relation to present reality, and that the statute for outside of New York City was as void as it would have been if it had re-enacted any completely out-of-date equalization rate, it still follows that the court held that the 1954 rates could be found by the Legislature to have some present relevance. What was there sustained was the assessed valuation as adjusted by an equalization rate. It may well be, as said in the opinion by Judge Fuld in Bucho, that considerations of practicality and feasibility led the Legislature to make the valuation base the readily ascertainable equalized assessed value, or sales price, and to exclude appraisals and other valuation indicia which might be considered in condemnation and tax certiorari proceedings. It still is true that, theoretically, at least, equalization was provided for.

The argument is misdirected, to be sure, that this local law and the enabling act on which it is based are invalid due to imposing a different system for administering rent control in New York City from that which obtains elsewhere in the State. It does not follow, however, that the city enactment can arbitrarily impose a different rate of return from real property of the same kind according to the mere accident of whether it happens to be situated in one or another of the five counties in the City of New York. We were told upon the argument that the equalization rates indicate that real property in Queens is assessed at about 60% of full value, whereas it is assessed at 98% in Manhattan. It seems plain that there is no reasonable basis for classification between properties of the same kind depending on whether they are situated in Manhattan or Queens. In the latter instance a rate of return, based upon unequalized assessed valuation, would be approximately 40% less than in the former for no reason whatever. Such a distinction is purely arbitrary.

It is no answer to say that equalization has nothing to do with the case inasmuch as it is a ratio applying to all of the real properties in a county without being allocated or apportioned to each parcel. It is easy enough to render it applicable to each parcel by simply applying the ratio to the assessed valuation as it appears upon the assessment roll. That is the manner in which it is done outside of New York City pursuant to statute, and there is no reason on account of which it cannot be done with equal facility and accuracy to parcels of real property within New York City. The point seems clear that it denies the equal protection of the laws to make an arbitrary distinction in the rates of return allowed on properties identical in every respect except in which county in the city they are located. In providing for equalization, the Legislature has recognized that properties in different localities are assessed at different proportions of full value. The Bucho case at least pays lip service to this principle, in that the constitutionality of that statute was saved by reintroducing the 1954 equalization rate. To that extent Bucho appears to be an authority in favor of reversal here.

This is an article 78 proceeding in which petitioner seeks to have the 1961 equalization rate applied, on the theory that the city cannot enact a local law without any equalization rate and that the 1954 equalization rate was not reintroduced as was done by the State outside of New York City as upheld in the Bucho case. If this provision of the city enactment be invalid, then it would seem that the earlier State law would be reverted to, under which the 1961 equalization rate was applied, or else the 1962 local law is invalid altogether. In either event petitioner would be entitled to the relief asked.

Judges Dye, Fuld, Burke, Foster and Scileppi concur with Chief Judge Desmond; Judge Van Voorhis dissents in a separate opinion.

Order affirmed.  