An Albany judge has rejected a law firm’s contention that it was unfairly dropped from the Empire Zone tax incentive program in 2009. Syracuse-based Bond, Schoeneck & King lost its Empire Zone designation under 2009 changes to General Municipal Law §959(a)(v)(5) authorizing the state Department of Economic Development to decertify businesses that created jobs by taking workers from “existing employment with another business enterprise with similar ownership.” The statute, informally referred to as the “shirt-changer” prohibition, sought to take incentives away from businesses that shuffled employment among related entities without boosting its overall numbers of workers.

In Bond, Schoeneck & King v. New York State Dept. of Economic Dev., 4271-12, Acting Supreme Court Justice Richard Platkin (See Profile) wrote that after Bond Schoeneck’s 2009 disqualification from the program, the firm was given the chance by Supreme Court Justice Patrick McGrath to argue before the state agency that it should be allowed to retain its designation due to “extraordinary circumstances.” Since the firm was able to air its position, Platkin said the state agency was within its discretion to affirm the decertification. Bond Schoeneck received the tax advantages for its Albany, Syracuse, Buffalo and Oswego offices.

Platkin declined to rule on the firm’s contention that the 2009 amendments to the Empire Zone law could not be applied retroactively. He noted that the Court of Appeals has agreed to hear that issue in several cases later this year, and that it would serve no purpose for him to address the same question now.