City of Rochester v. Iman

• Decision Date: 16 January 1976
• Citation: City of Rochester v. Iman, 378 N.Y.S.2d 203, 51 A.D.2d 651 (N.Y. App. Div. 1976)
• Parties: Application of the CITY OF ROCHESTER, Appellant-Respondent, v. Raymond S. IMAN and Manuel Iman, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 203

378 N.Y.S.2d 203

51 A.D.2d 651

Application of the CITY OF ROCHESTER, Appellant-Respondent, v.Raymond S. IMAN and Manuel Iman, Respondents-Appellants.

Supreme Court, Appellate Division, Fourth Department.

Jan. 16, 1976.

Louis N. Kash, Corp.Counsel, Rochester (Anthony M. Sortino, Rochester, of counsel), for appellant-respondent.

Levy, Feldman & Licata, P.C., David Levy, Rochester, for respondents-appellants.

Before MARSH, P.J., and MOULE, MAHONEY, GOLDMAN and WITMER, JJ.

MEMORANDUM:

The trial court ruled that the appraisal of the subject property made on behalf of the City was inadmissible under our rule 1024.24(22 NYCRR 1024.24) for failure to contain comparable market data upon which its 9 per cent capitalization rate was based, and so the court completely disregarded that appraisal.This was error.The validity of a capitalization rate depends upon the facts presented in support thereof (Matter of City of New York (Madison House), 17 A.D.2d 317, 324, 234 N.Y.S.2d 799, 806) and expert testimony thereof is competent evidence (Diocese of Buffalo v. State of New York, 18 N.Y.2d 41, 47 and 49, 271 N.Y.S.2d 670, 673 and 675, 218 N.E.2d 544, 546 and 548;CPLR 4515;1 Orgel on Valuation Under Eminent Domain 2d(1953), § 185;4 Nichols on Eminent Domain3d, § 12.312(3)).

Because it rejected the City's appraisal the trial court found that the owners' appraisal was the only valid evidence of value, and it adopted without modification the owners' estimate of their damages.We find, however, that there is a defect in the owners' appraisal in that it lacks evidentiary support for its thesis that the highest and best use of the property is for redevelopment as a part of an assemblage.Although there was evidence that some properties in the vicinity were developed through assemblages, there was no evidence that lands adjoining the subject property were available to form an assemblage with it, and there was insufficient supporting evidence to establish a value.In this respect, therefore, the owners' appraisal rests on speculation (Matter of City of New York Shorefront High School-Rudnick, 25 N.Y.2d 146, 149, 303 N.Y.S.2d 47, 49, 250 N.E.2d 333, 334).We recognize that the pall of condemnation blight hanging over the area may have made it difficult to develop such evidence, but that does not cure the defect in the appraisal.

In the circumstances of this casewe do not think that justice can be done by merely adopting the reverse view of the trial...