New York Law Journal: The Province of the Trial Court in a Condemnation Case

Michael Rikon authored a column in the June 28, 2016, edition of the New York Law Journal titled, “The Province of the Trial Court in a Condemnation Case.”  In his article, Mr. Rikon begins by noting that New York is one of only three states that does not allow trial by jury in eminent domain proceedings.  This highlights the importance of the New York trial court and its broad discretion as the trier of both fact and law.

Mr. Rikon discusses a number of areas that are within the sound discretion of the trial court.

First, Mr. Rikon considers that expert witness are necessary for condemnation trials, as the trials are limited by the information set forth in the parties’ appraisals and expert reports.  The trial court has the discretion to limit the number of expert witnesses in a trial.

Next, Mr. Rikon explains that the trial court also determines if the witness is qualified as an expert to give opinion evidence.  This determination is rarely disturbed on appeal.  For example, in Matter of City of New York (Darlington Avenue), 25 Misc.3d 1240(A) (Sup. Ct. Kings County 2009), the trial court held that a real estate broker, although not a licensed real estate appraiser, was properly qualified as an expert to value damages because he had been appraising properties for 35 years and possessed the requisite skill, training, education, knowledge, or experience to render a reliable opinion.

The trial court can also reject expert testimony.  Where the trial court’s explanation of its award is supported by the evidence, it is entitled to deference and will not be disturbed on appeal.

The suitability and the degree of comparability of comparable sales utilized in an appraisal is another matter within the discretion of the trial court, absent legal error.  This includes whether to consider a sale beyond the immediate vicinity of the subject property.

The appellate court will rarely change a trial court’s determination with respect to a witness’ credibility because the trial court has the ability to watch the witness testify and consider the witness’ capacity to tell the truth.

It is within the trial court’s discretion to allow an appraisal to be amended, to allow an appraisal to be untimely filed, and to allow for an extension of time in which to file an appraisal.  The trial court can also draw an adverse inference against a party whose appraiser destroyed draft appraisals or whose engineer destroyed draft feasibility studies.

If an expert witness destroys prior draft appraisals, the trial court has the discretion to impose sanctions.  Further, the trial court can preclude a witness where there is a failure to either disclose or identify a witness until after the trial has begun and there is no explanation for that failure.

Last, Mr. Rikon reviews the Eminent Domain Procedure Law § 701, which enables the trial court, within its discretion, to award additional allowances for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees.  This allowance occurs when the condemnee recovers after trial an amount substantially in excess of the condemnor’s proof at trial.

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