Matter of Broadway Worldwide, Inc. v New York State Dept. of Economic Dev.

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Matter of Broadway Worldwide, Inc. v New York State Dept. of Economic Dev. 2016 NY Slip Op 03825 Decided on May 17, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 17, 2016
Mazzarelli, J.P., Moskowitz, Manzanet-Daniels, Gesmer, JJ.
1151 100631/14

[*1]In re Broadway Worldwide, Inc., Petitioner,

v

New York State Department of Economic Development, Respondent.



Rappaport, Hertz, Cherson & Rosenthal, P.C., Forest Hills (Howard Levine of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York (Judith Vale of counsel), for respondent.



Determination of respondent, New York State Department of Economic Development (DED), dated February 21, 2014, affirming the decision of an administrative law judge, dated December 31, 2013, which, following a hearing, had denied petitioner production company an additional tax credit under Tax Law § 24, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Carol E. Huff, J.], entered January 23, 2015), dismissed, without costs.

DED's determination has a rational basis in the record and is supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights , 45 NY2d 176, 179-182 [1978]). With respect to the five contracts at issue, DED rationally concluded that petitioner, despite ample opportunity, failed to differentiate between payments for services, which qualifies for a tax credit under Tax Law § 24, and payments for intellectual property rights, which does not, and failed to establish that the services referenced in the contracts were actually performed (see Tax Law § 24[b][2]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 17, 2016

CLERK