The opinion
Kupferman, J. P. (dissenting).
I would affirm.
While I cannot fault the Department of Housing Preservation and Development in its dissatisfaction with a statutory exemption that allows luxury accommodations to obtain a tax exemption, the operative langauge in the governing statute is “under-utilized”. The conclusion that this prime piece of real estate at the southeast corner of Fifth Avenue at 57th Street was not “under-utilized” can be justified only on the basis that tax benefits of this kind should not have been authorized.
As to the proper objective definition, footnote 4 on page 595 of the Court of Appeals opinion (.Matter of Trump- *494 Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588 ) states as follows: “We would note in this regard that we in no way approve of or adopt Trump’s contention that ‘under-utilized land’ is property not developed to the most productive state or maximum potential permitted under applicable zoning regulations. More appropriate perhaps is Special Term’s formulation of the statutory concept as property ‘used in such manner that substantially less beneficial use was made of the land than was possible under the circumstances.”
Within the “appropriate” definition, it has been shown that the new structures make substantially more beneficial use of the land involved.
Sullivan, Ross and Milonas, JJ., concur with Alexander, J.; Kupferman, J. P., dissents in an opinion.
Order and judgment (one paper), Supreme Court, New York County, entered on or about July 13, 1983, reversed, on the law, without costs and without disbursements, and the determination of the Commissioner of the Department of Housing Preservation and Development of the City of New York is reinstated and the petition dismissed.