
    Empire State Building Company, Respondent, v New York State Department of Taxation and Finance et al., Appellants.
    Decided May 11, 1993
    
      APPEARANCES OF COUNSEL
    
      Robert Abrams, Attorney-General, Albany (Vincent Leong of counsel), for New York State Department of Taxation and Finance and another, appellants.
    
      O. Peter Sherwood, Corporation Counsel of New York City (Frances J. Henn of counsel), for City of New York and others, appellants.
    
      Wein, Malkin & Bettex, New York City (Marcia E. Kusnetz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiffs tenants’ payment of an Electricity Rent Inclusion Factor (ERIF) was for electric service provided only as an incident to the rental of commercial premises in plaintiffs building and not as part of "separate transactions which have as their primary purpose the furnishing of utilities or utility services” (Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657, 661). The taxing of the ERIF payments as a sale of utility services under Tax Law § 1105 (b) was therefore improper.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.  