Rochester Genesee Reg'l Transp. Auth. v. Stensrud

• Citation: 173 A.D.3d 1699,101 N.Y.S.3d 549
• Decision Date: 07 June 2019
• Docket Number: CA 18–00647,1345
• Parties: In the Matter of ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, Petitioner–Respondent, v. John R. STENSRUD, Maria B. Stensrud, Respondents–Appellants, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1699
101 N.Y.S.3d 549

In the Matter of ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, Petitioner–Respondent,
v.
John R. STENSRUD, Maria B. Stensrud, Respondents–Appellants, et al., Respondent.

1345
CA 18–00647

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 7, 2019

LACY KATZEN LLP, ROCHESTER (JOHN T. REFERMAT OF COUNSEL), FOR RESPONDENTS–APPELLANTS.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (KATHLEEN M. BENNETT OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.

101 N.Y.S.3d 551

MEMORANDUM AND ORDER

173 A.D.3d 1700

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion insofar as it sought to strike that part of respondents-appellants' appraisal report with respect to "investment value" and insofar as it sought to preclude testimony of respondents-appellants' proposed expert that is consistent with the determination and proof of valuation in respondents-appellants' appraisal report, and as modified the order is affirmed without costs.

Memorandum: In this condemnation proceeding, respondents-appellants (respondents) appeal from an order that granted petitioner's motion in limine to strike that part of respondents' appraisal report with respect to "investment value" and to preclude respondents' proposed expert from testifying at trial and that denied respondents' cross motion in limine to strike petitioner's appraisal report. As an initial matter, we note that the order is appealable inasmuch as it limited "the scope of the issues at trial" by precluding the introduction of evidence regarding respondents' primary method of property valuation ( Dischiavi v. Calli , 125 A.D.3d 1435, 1436, 3 N.Y.S.3d 491 [4th Dept. 2015] ).

We agree with respondents that Supreme Court erred in granting the motion insofar as it sought to strike that part of their appraisal report with respect to "investment value," and we therefore modify the order accordingly. "The measure of damages in condemnation is the fair market value of the condemned property in its highest and best use on the date of the taking" ( Matter of City of New York [Franklin Record Ctr.] , 59 N.Y.2d 57, 61, 463 N.Y.S.2d 168, 449 N.E.2d 1246 [1983] ). There is "no fixed method for determining [fair market] value" ( Matter of Allied Corp. v. Town of Camillus, 80 N.Y.2d 351, 356, 590 N.Y.S.2d 417, 604 N.E.2d 1348 [1992], rearg. denied 81 N.Y.2d 784, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1993] ; see generally Matter of Consolidated Edison Co. of N.Y., Inc. v. City of New York, 8 N.Y.3d 591, 597, 838 N.Y.S.2d 458, 869 N.E.2d 634 [2007] ) and, absent evidence of a recent sale of the subject property, "the courts have traditionally valued property by one of three methods:...