City of Buffalo v. Strozzi

• Decision Date: 20 October 1967
• Citation: 283 N.Y.S.2d 919,54 Misc.2d 1031
• Parties: The CITY OF BUFFALO, Plaintiff, v. Paul F. STROZZI et al., and One Top Corporation, Salvatore Vitello, Leonard J. Vitello, Joseph F. Vitello, Charles J. Vitello, Concetta Vitello, and Catherine L. Petrino, Defendants.
• Court: New York Supreme Court

Page 919

283 N.Y.S.2d 919

54 Misc.2d 1031

The CITY OF BUFFALO, Plaintiff, v. Paul F. STROZZI et al., and One Top Corporation, Salvatore Vitello, Leonard J. Vitello, Joseph F. Vitello Charles J. Vitello, Concetta Vitello and Catherine L. Petrino, Defendants.

Supreme Court, Erie County.

Oct. 20, 1967.

[54 Misc.2d 1032] Anthony Manguso, Corp. Counsel, City of Buffalo (Clarence S. Wertheimer, Asst. Corp. Counsel, of counsel), for plaintiff.

Brennan & Brennan, William R. Brennan, Buffalo, of counsel, for defendants One Top Corp. and Catherine L. Petrino.

MEMORANDUM DECISION

ALONZO J. PREY, Justice.

This is a proceeding pursuant to Article 21 of the City Charter in the City of Buffalo Laws 1929, c. 527 in condemnation to appropriate and acquire title to the following described real property in Buffalo for use as provided by law:

ALL THAT TRACT OR PARCEL OF LAND, situate in the City of Buffalo, County of Erie and State of New York, bounded and described as follows:

BEGINNING on the northeasterly line of Trenton Avenue (formerly Fifth Street) distant 247 feet 5 inches southeasterly from the intersection of said line of Trenton Avenue with the southeasterly line of Georgia Street; thence northeasterly at right angles with Trenton Avenue 100 feet; thence southeasterly parallel with Trenton Avenue 50 feet to the northwesterly corner of a lot formerly occupied by T. B. Tilden; thence southwesterly on the line of said lot, 100 feet to the northeasterly line of Trenton Avenue; thence along said line of Trenton Avenue 50 feet to the place of beginning.

The above described parcel being Parcel 34 in Block 1 as shown on a map entitled 'Property Map J' as described in subdivision M in Paragraph 13 of the Plaintiff's complaint and located at 25--27 Trenton Avenue, City of Buffalo, New York.

The issues in the above entitled matter came on for trial before the undersigned without a jury on the 8th day of June, 1967 at which time proof of the respective parties to this action was heard.

The property described above is shown on a map received in evidence marked Plaintiff's Exhibit 3 indicated on said may by an 'X' mark in Block 1 thereon and being Parcel 34. The area of said lot is 50 feet front and rear and 100 feet in depth, a 5,000 square feet area situated on the east side of Trenton Avenue and midway between Georgia Street on the north and Wilkeson Street on the south. The property is vacant at the present time and has been vacant for several years prior to the trial of this action. It is a three-story brick building and during the time it was actually in use it was an apartment house containing 12 apartments, 4 apartments on each floor with a full basement under the main part of the building. When the building was fully rented in 1964 it produced an annual gross income for all 12 apartments of $5,520 per year.

The premises are owned, as shown by the Title Report Exhibit 1 in Evidence by One Top Corporation who acquired it from Sebastian L. Petrino on October 9, 1959 by Deed duly recorded in the Officer of the Clerk in Erie County. It is subject to a first mortgage owned by the defendants Salvatore Vitello, Leonard J. Vitello, Charles J. Vitello, Concetta Vitello and Joseph F. Vitello and subject to a second mortgage owned by Catherine L. Petrino in the present amount of $5,000. The balance on the first mortgage as of March, 1967 was approximately $4,182.40. At the time that the defendant, One Top Corporation, purchased the property in 1959 the consideration paid therefor was $20,000. The One Top Corporation is owned by the executors of the estate of Sebastian L. Petrino and the witness Pascal J. Petrino is one of the coexecutors with a sister. The mortgagee Catherine Petrino is the surviving widow of Sebastian Petrino and is the beneficiary of the trust fund under the Will of the decedent Sebastian Petrino. Pascal J. Petrino has acted as manager of the premises since its purchase by One Top Corporation and he had full charge of the premises managing the tenants, collecting the rents and paying the obligations of the premises; that is, taxes, insurance, and supervising repairs that were made, etc. Mr. Pascal Petrino took several photographs of the premises, Exhibits A--D taken in 1966 taken from different angles and photographs Exhibits E and F were taken by Mr. Van Dyke who made the appraisal for Wm. R. Albright & Associates, Inc. which were also received in Evidence. A very serious fire occurred in the premises on April 26, 1967 after the pictures were taken so the pictures do not reveal the condition of the premises as the Court found them to be when viewed by the Court on June 8, 1967, after the conclusion of the trial. The place is really in shambles, no windows, all of them have been broken and the place at present is wholly uninhabitable.

The appraisal report of Wm. R. Albright & Associates, Inc. made by Malcolm Van Dyke was duly received in Evidence as Defendant's Exhibit J. Mr. Van Dyke's appraisal value of the premises was $25,000. He used three approach methods, that of comparable sales approach, the cost approach, and the income approach. Mr. Van Dyke made his appraisal in February of 1967 prior to the fire which occurred in April of 1967.

The City employed Grant Appraisal & Research Corporation to make its appraisal of the premises and this appraisal was duly received in Evidence marked Plaintiff's Exhibit 2 made by Mr. Lawrence A. Grant. His appraisal and inspection were made in June, 1965, and were completed on June 18, 1965. He also used three methods of approach in reaching his valuation; that is, the cost approach, the income approach, and the comparable land sales approach. In his opinion the value of the premises is $2,250.

The defendant without objection introduced in Evidence Defendant's Exhibit 1 the City Tax bills covering this property for the period of July 1, 1965 through June 30, 1966 which showed an assessed valuation of the premises at $16,360 total City Tax bill $791.56 and the City tax bill for July 1, 1966 through June 30, 1967 reveals that the City had reduced the assessed valuation to $12,490 with the yearly City Tax bill of $651.34. The defendant also introduced in Evidence over the objection of the plaintiff an appraisal report made by Thomas Donovan who made an appraisal for the City in July, 1961 which was made for the purpose of obtaining funds from the Federal Government in connection with the Urban Renewal for which this property is being condemned. The Court received the Evidence subject to be stricken if found incompetent. It has been held that such a document is admissible in Evidence as an admission against the interest of the City in this action. (Matter of City of New York, 50 Misc.2d 478, 270 N.Y.S.2d 703.) The Court in that case held that the valuation as stated in such an appraisal report is competent proof but the factual data contained therein was not relevant. I now hold that said appraisal report is admissible as to valuation only and may be considered by the Court only as it relates to the valuation of the subject property. The appraisal made by Mr. Donovan on July 15, 1961 placed a valuation on the premises of $23,318.

Appraiser Grant testified that the equalization rate for the City of Buffalo is 51%. Objection was made to the competency of this proof, but the Court received it subject to be stricken if determined to be incompetent. Following the opinion of Justice Moule in City of Buffalo v. Varisco unreported but supported by the authority of (Matter of Simmons, 132 App.Div. 574, 116 N.Y.S. 952) and (Porter v. International Bridge Co., Sup., 137 N.Y.S. 214), I hold that the proof respecting the equalization rates as it relates to the assessed valuation is competent and relevant as some evidence of value in making a determination of the value of said premises and is admissible. Using the figures of the equalization rate by mathematical extension would given the property a market value between $31,000 and $33,000 depending on which assessed valuation figure is used. In Condemnation, the weight to be given the assessed valuation varies inversely with the other evidences of value (Matter of City of New York v. Marshall, 16 A.D.2d 570, 229 N.Y.S.2d 947).

The time table of the various proceedings commenced by the City under Article 21 of the City Charter which authorizes condemnation proceedings began as early as 1954 when the Waterfront Development Project was initiated by the City Planning Commission. The Federal Housing and Home Finance Agency approved the City applicable for a Federal grant allocation in March, 1960. The City Planning Board held a public hearing on Urban Renewal Plan for the Waterfront Project on September 16, 1963. The final approval was received by the City from the Housing and Home Finance Agency in May of 1964. The contract was executed in July of 1964, and the State grant contract on this same development project was executed in July of 1966. The petition in condemnation was filed in the Office of the Clerk in Erie County on January 12, 1967, and the order in Condemnation was entered in the Office of the Clerk of Erie County on March 31, 1967.

Under the City...