Lucenti v. Cayuga Apartments, Inc.

Decision Date07 December 1978
Citation410 N.Y.S.2d 928,66 A.D.2d 928
PartiesDonald J. LUCENTI, Appellant, v. CAYUGA APARTMENTS, INC., Respondent.
CourtNew York Supreme Court — Appellate Division

Michael J. Pichel, Ithaca (Connie Fern Miller, Ithaca, of counsel), for appellant.

Van Lengen, Sanford & Papworth, Syracuse (George H. Van Lengen, Syracuse, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a resettled judgment of the Supreme Court in favor of plaintiff, entered March 30, 1978 in Tompkins County, upon a decision of the court at Trial Term, without a jury.

The underlying action is one for specific performance with an abatement of purchase price.The case was previously before this court(Lucenti v. Cayuga Apts., 59 A.D.2d 438, 400 N.Y.S.2d 194) and the facts giving rise to this litigation are amply set forth in our opinion therein.We need not repeat them here.We concluded that the plaintiff was entitled to specific performance with an abatement in the purchase price to reflect the "actual value of the property destroyed by fire"(Lucenti v. Cayuga Apts., supra, p. 443, 400 N.Y.S.2d p. 196) and remanded for such determination.On remand the court found that the actual value of the property was $12,000 and the "cost to cure" was $7,500, entitling plaintiff to an abatement of $19,500.This appeal by plaintiff ensued.

The sole issue for our determination is whether the court used the appropriate standard and correctly determined the abatement from the purchase price.

An examination of the record reveals that defendant based its proof on the loss of the fair market value of the property destroyed and plaintiff relied solely on the cost of replacement less depreciation.The court, in our view, correctly rejected the tests put forth by both parties(Burack v. Chase Manhattan Bank, 9 A.D.2d 914, 194 N.Y.S.2d 987, affd.Sub nom. Burack v. Tollig, 10 N.Y.2d 879, 223 N.Y.S.2d 505, 179 N.E.2d 5) and properly concluded that the value of the premises destroyed must be based on all the evidence presented at trial, including the amount defendant received from his fire insurance carriers.In order to determine the actual value of the property destroyed any fact reasonably tending to throw light upon the subject should be considered, including original cost and the cost of reproduction, expert opinions, declarations against interest, and the gainful uses to which the property might have been put (cf.McAnarney v. Newark Fire Ins. Co., 247 N.Y. 176, 159 N.E. 902).Plaintiff contended that the replacement cost less depreciation for the...

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5 cases
  • Great Northern Ins. Co. v. Dayco Corp.
    • United States
    • U.S. District Court — Southern District of New York
    • July 15, 1986
    ...value, fair market value, testimony of witnesses as to their opinion of value, and any other relevant evidence. See Lucenti v. Cayuga Apartments, Inc., 66 A.D.2d 928, 410 N.Y. S.2d 928, 929-30 (3d Dept.1978); Incardona, 400 N.Y.S.2d at 945; McAnarney 247 N.Y. 176, 159 N.E. Dayco presented e......
  • Bank of Am., N.A. v. Won Sam Yi, an Individual, Sung Eun Yi, an Individual, Comprehensive Cancer Servs. Oncology, P.C.
    • United States
    • U.S. District Court — Western District of New York
    • March 21, 2018
    ... ... Recovery of Chattel, is such a state-law remedy." Colonial Ford, Inc. v. Ford Motor Co., No. CIV-90-1157E, 1991 WL 5161, at *2 (W.D.N.Y. Jan ... ...
  • Kaiser v. Fishman
    • United States
    • New York Supreme Court — Appellate Division
    • November 18, 1992
    ...power of this court to grant the judgment which, upon the evidence, should have been granted by the trial court" (Lucenti v. Cayuga Apts., 66 A.D.2d 928, 929, 410 N.Y.S.2d 928, affd. 48 N.Y.2d 530, 423 N.Y.S.2d 886, 399 N.E.2d 918). Upon our review of the instant nonjury trial, we find that......
  • Lucenti v. Cayuga Apartments, Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • December 13, 1979
    ...to their statements of value, and fixing the actual value of the building on consideration of the whole record at $20,000 (66 A.D.2d 928, 410 N.Y.S.2d 928). Plaintiff's appeal from the Appellate Division's order, affirming as modified, has been dismissed by us on the ground that he was not ......
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