State Tax Commission v. Shor

53 A.D.2d 814, 385 N.Y.S.2d 290, 1976 N.Y. App. Div. LEXIS 13634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1976
• Status: Published

Opinion

Order, Supreme Court, New York County, entered October 15, 1975, directing the turnover of certain escrowed funds to the State Tax Commission, the Chase Manhattan Bank, and 480 Park Avenue Corporation and discharging the bank from all liability for the escrowed funds upon compliance with the court’s order, unanimously affirmed. Respondents State Tax Commission, Chase Manhattan and 480 Park Avenue shall recover of appellant one bill of $40 costs and disbursements of this appeal. The facts underlying this appeal are set forth in 84 Misc 2d 161. The issue presented is whether the stock of a co-operative apartment and its accompanying proprietary lease, owned by respondent Shor, constitutes realty or personalty for purposes of determining the perfection and priority of creditors’ liens thereon. As a majority of this court observed in Silverman v Alcoa Plaza Assoc. (37 AD2d 166, 172) "a proprietary lease is no different from any other type of lease. It is personal property. Co-operative apartment stock is nevertheless stock, like any other stock in a corporation”. The corporation is sole owner of the land and building. It is the stock and not the lease, which is sold. And stock ownership is a prerequisite to procuring a lease. Thus, as Special Term noted "whatever rights a co-operative stockholder has in a co-operative are derived from the stock and not the proprietary lease.” (84 Misc 2d 161, 164.) It necessarily follows then that an interest in a co-operative apartment is not a chattel real within the meaning of CPLR 105 (subd [r]) and is therefore not subject to CPLR 5203, which addresses itself to priorities and liens upon real property. Concur—Markewich, J. P., Silverman, Capozzoli, Nunez and Yesawich, JJ.