
    In the Matter of First National City Bank, Appellant-Respondent, v. City of New York Finance Administration, Respondent-Appellant.
   Judgment, Supreme Court, New York County, entered on February 4, 1972, in this article 78 proceeding, directing a refund of New York City Commercial Rent or Occupancy Taxes imposed pursuant to title L of chapter 46 of the Administrative Code of the City of New York, unanimously modified, on the law, to provide for interest at the rate of 3% per annum on the refunded taxes from the dates of payment thereof, and otherwise affirmed, without costs and without disbursements. The commercial occupancy tax, as applied to petitioner, is unconstitutional, and this proceeding was properly and timely brought to review respondent’s, denial of petitioner’s application for a refund. Since the tax is unconstitutional, respondent may not rely on the companion refund provisions thereof, including that which would deny interest on a refund, to defeat petitioner’s claims. (Matter of O’Berry, 179 N. Y. 285.) Concur — McGivern, P. J., Murphy, Tilzer and Capozzoli, JJ.  