| Expedia, Inc. v City of N.Y. Dept. of Fin. |
| 2011 NY Slip Op 08648 [89 AD3d 640] |
| November 29, 2011 |
| Appellate Division, First Department |
| Expedia, Inc., et al., Appellants, et al., Plaintiffs, v City ofNew York Department of Finance et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Joshua M. Wolf of counsel), forrespondents.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 22, 2010,which granted defendants' motion to dismiss the first cause of action seeking a declaration thatLocal Law No. 43 (2009) of City of NY violates the Constitution of the State of New York anddeclared in favor of the New York City Department of Finance and the City of New York(defendants or City) that there is no constitutional violation, unanimously reversed, on the law,without costs, the motion denied, and, upon a search of the record, it is declared that Local Law43 violates the New York State Constitution.
Plaintiffs, on-line travel intermediaries that facilitate hotel room reservations, commencedthis action against defendants challenging the constitutionality of Local Law 43, which amendedcertain subdivisions of the Administrative Code of the City of New York § 11-2501 etseq. in order to extend the hotel room occupancy tax to include imposition of the tax on theservice or booking fees earned by plaintiffs in connection with hotel room reservations. Plaintiffsseek, inter alia, a declaration that defendants lacked the authority to expand the hotel roomoccupancy tax to impose it on the fees earned by them. The enabling legislation authorized theCity of New York to impose on a hotel occupant a tax at a rate of up to six percent of the rent orcharge per day for each hotel room (CLS Uncons Laws of NY, ch 288-C, § 1, as added byL 1970, ch 161, § 1). Contrary to the motion court's finding, the plain language of theenabling legislation did not clearly and unambiguously provide the City with broad taxationpowers with respect to imposing a hotel occupancy tax. Rather, it permitted the City to imposethe tax on "hotel occupants." Given the well-established rule that a statute that levies a tax "mustbe narrowly construed" and "any doubts concerning its scope and application are to be resolvedin favor of the taxpayer" (Debevoise & Plimpton v New York State Dept. of Taxation &Fin., 80 NY2d 657, 661 [1993]), the plain meaning of this phrase did not encompass theservice fees charged by the travel intermediaries and the legislation may not be extended so as topermit the imposition of the tax in a situation not embraced by it (id.). [*2]To extend the tax to cover these fees requires action by the StateLegislature, such as that taken in 2010 (see CLS Uncons Laws of NY, ch 288-C, §1; L 2010, ch 57, Part AA, § 1, eff Sept. 1, 2010). Concur—Saxe, J.P., Friedman,Renwick, DeGrasse and Freedman, JJ.