In the Matter of The Application of The City of N.Y. Relative To Acquiring Title In Fee Simple Absolute To Certain Real Prop. Where Not Heretofore Acquired For the Grantwood Retention Basin Located In the Area Generally Bounded By Shotwell Ave. To the East v. the City of N.Y.

• Decision Date: 07 September 2011
• Citation: 33 Misc.3d 586,2011 N.Y. Slip Op. 21319,929 N.Y.S.2d 478
• Parties: In the Matter of the Application of the CITY OF NEW YORK relative to acquiring title in fee simple absolute to certain real property where not heretofore acquired for the Grantwood Retention Basin located in the area generally bounded by Shotwell Avenue to the east, Tyron Avenue to the south, Grantwood Avenue to the west, and Woodrow Road to the north, in the Borough of Staten Island, City and State of New YorkCassino Contracting Corp. (Fee Claimant with respect to Damage Parcel 1, Block 5676, Lot 1), Claimant,v.The City of New York, Condemnor.
• Court: New York Supreme Court

33 Misc.3d 586

929 N.Y.S.2d 478

2011 N.Y. Slip Op. 21319

In the Matter of the Application of the CITY OF NEW YORK relative to acquiring title in fee simple absolute to certain real property where not heretofore acquired for the Grantwood Retention Basin located in the area generally bounded by Shotwell Avenue to the east, Tyron Avenue to the south, Grantwood Avenue to the west, and Woodrow Road to the north, in the Borough of Staten Island, City and State of New YorkCassino Contracting Corp. (Fee Claimant with respect to Damage Parcel 1, Block 5676, Lot 1), Claimant,

v.The City of New York, Condemnor.

Supreme Court, Richmond County, New York.

Sept. 7, 2011.

Corporation Counsel, New York, Plaintiff Attorney.Goldstein, Rikon & Rikon, P.C., New York, Michael Rikon, Esq., Wayne P. Saitta, J., Holly Gerstenfeld, Esq., Claimant Attorney.Wayne P. Saitta, J.

In this condemnation proceeding, Condemnor CITY OF NEW YORK (hereinafter “CITY”) moves this Court for an order dismissing the fee claim of Cassino Contracting Corp. (hereinafter the “Claimant”), on the grounds that Claimant's appraisal report dated October 7, 2010, is invalid as a matter of law.

Upon reading the Notice of Motion of the CITY OF NEW YORK, dated June 15, 2011, the annexed affirmation of Holly R. Gerstenfeld, Esq., Assistant Corporation Counsel, dated June 15, 2011, and the exhibits annexed thereto; the Affirmation in Opposition, of Michael Rikon, Esq., Goldstein, Rikon, & Rikon, P.C., attorneys for Claimant, and the exhibits annexed thereto; the Reply Affirmation of Holly R. Gerstenfeld, Esq.; the Vesting Order signed by the Hon. Abraham Gerges JSC, dated October 3, 2008, and all proceedings heretofore had herein; after hearing argument of Counsel and due deliberation thereon, the CITY's motion to dismiss is denied for the reasons set forth below.

The CITY acquired title to the subject property, Block 5676 Lot 1 (Damage Parcel 1), a 97,294 square foot parcel of land located at the southeast corner of Woodrow Road and Grantwood Avenue on Staten Island, on October 9, 2008. On the date of vesting the property was vacant and was restricted by a declaration limiting its use to a storm water retention basin until such time as the City of New York constructs a storm water outlet for the storm flow contributing to the retention basin.

The CITY argues that the property has no value because of the restrictive declaration to which it is subject. The CITY argues that since the property is restricted by a declaration that forbids development until a storm sewer system is built, and that one was not built as of the vesting date, it should be valued as permanently restricted by the declaration. The CITY also argues that the costs for a developer to build a detention water system that would allow the site to be developed under the terms of the declaration, without the City building a storm water outlet, would be so expensive as to prohibit development.

Further, the CITY argues that the opinion in Claimant's appraisal report that the highest and best use for the site is as a speculative investment is not legally cognizable, and the valuation method used of discounting the unregulated use by 85%, is not a valid method of valuation, but mere speculation.

Lastly the CITY argues that none of the comparable sales cited in Claimant's appraisal report was of a property encumbered by similar restrictions.

Claimant contends that the restrictive declaration is, by its terms, temporary and will restrict the property only until the CITY builds a storm water outlet, and that construction of such an outlet was on the CITY's plans and maps as of the date of vesting.

Claimant further contends that a willing buyer would have purchased the property as a speculative investment on the date of vesting. That is, on the expectation that even though one could not develop the property on the vesting date, there was a reasonable probability that at some point in the future the City would build a storm water outlet and the declaration would cease to restrict the property.

Claimant also contends the fact that the City assessed the property at $1,240,000.00 and Claimant continued to pay taxes based on that assessment is evidence that the property had more than nominal value.

DISCUSSION

Although not denominated as such, the CITY's motion to dismiss is essentially a motion for summary judgment on the grounds that the Claimant's appraisal does not use a valid method of valuation, and since Claimant is limited to the facts and opinions set forth in the appraisal there is no admissible evidence to support its claim.

It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980).

Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of action. Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572, (1986).

When considering a summary judgment motion the Court is required to accept the Plaintiff's evidence as true and give it the benefit of “every reasonable inference which can be reasonably drawn from that evidence.” Secof v. Greens Condominium, 158 A.D.2d 591, 551 N.Y.S.2d 563, citing, Goldstein v. Hauptman, 131 A.D.2d 724, 516 N.Y.S.2d 783.

Further, since both the CITY and the Claimant at trial are limited in their affirmative proof to matters set forth in the appraisal reports [22 NYCRR § 202.61(e) ], the parties are limited to the matters set forth in the appraisal reports exchanged in supporting and opposing this motion.

In a condemnation proceeding, the burden of proof remains upon the claimant but the State has an independent obligation to pay just compensation and, in connection therewith, to present its own appraisal of the property's highest use and value. Chase Manhattan Bank, 103 A.D.2d 211, 221, 479 N.Y.S.2d 983 (2nd Dept. 1984).

In this case where the City contends the land has no value, to prevail on its motion, the City must show not only that the Claimant's appraisal is invalid as a matter of law but also that there is no factual question that the property is without value. A condemnation proceeding is not a private litigation. There is a constitutional mandate for the court to give just and fair compensation for property taken. Yaphank Development Company Inc. v. County of Suffolk, 203 A.D.2d 280, 609 N.Y.S.2d 346 (2nd Dept.1994).

The property must be valued at the highest and best use to which it could legally be put on the date of vesting. It is undisputed that on the date of vesting the property was subject to a restrictive declaration. The parties dispute whether on the date of vesting, the restriction could be considered permanent or temporary.

By the terms of the declarations, the restrictions remain in place until the CITY builds a storm water outlet to serve the property. On the date of vesting, such outlet had not been built therefore as of the vesting date the property could not be developed without constructing an alternate subsurface water detention facility.

The CITY's appraisal report concludes that the costs of constructing a subsurface facility would be prohibitively expensive. Claimant does not rebut that opinion but contends that the highest and best use of the property was not to develop it as restricted, but as a speculative investment on the expectation that the restrictions would be lifted in the future.

Claimant has offered some evidence that there is a reasonable expectation that the CITY might construct a storm...