WHAT A JUDGE SHOULD DO IF THE APPRAISAL IS DEFECTIVE

In a recent case, the appraisal prepared by Claimant specifically set forth a complete narrative of how the damages to the property occurred together with an analysis and calculations. The appraisal further calculated the before and after results following the takings.

An appraisal is not the substitute for witnesses’ testimony. Case law emphatically holds than an appraisal is not the substitute for an expert’s direct testimony. The appraisal report is not in itself evidence; its function is to enable adequate and intelligent preparations of the issues for trial and to limit expert testimony at trial. A trial is required to place the appraisal reports and other evidence before the tier of facts to establish the value of the property taken. In re Town of Guilderland, 267 AD2d 837 [3d Dept 1999] citing Homer v State of New York, 36 AD2d 333, 335 [3d Dept 1971] aff’d 30 NY2d 722 [1972]. The Condemnor obtained an Order allowing it to enter the property and cut and remove bricks from the front wall until the end of the floor joists. The construction caused substantial permanent damage to the building. It is clear that this was not a temporary taking. A Second Order allowed the MTA to proceed to do construction work on the building for “stabilization” which required the removal and replacement for brick and mortar on the exterior walls and the installation of rods to tie the building floor joists in the northern and western walls of the building. The work performed by the Condemnor again severely damaged the building.

While the appraisal detailed the facts, which showed the damage to the building and damages sustained, the trial Court did not agree that the damages were permanent or adequately set forth in the appraisal. The Court not only struck the appraisal but dismissed the claim. 

The issue is not whether the Court failed to read and understand the appraisal. Rather, it is the outright dismissal of the constitutionally protected claim. If an appraisal is deemed defective, the remedy is to direct the filing of another appraisal – not dismiss the claim. Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280 [1994]; Frank Micali Cadillac-Oldsmobile, Inc. v State of New York, 104 AD2d 477 [2d Dept 1984]. The denial of any trial is an absolute denial of due process. The United States Supreme Court has held that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims or right and duty through the judicial process must be given a meaningful opportunity to be heard. Boddie v Connecticut, 401 US 371, 377 [1971].

A condemnation proceeding is not a private litigation. Eminent domain is not your typical litigation. The former owner, now a claimant, did not ask for its property to be taken for a public purpose.

The well-established Law of this State has consistently pointed out that what may be normal in litigation between private parties does not apply in a condemnation proceeding which involves a claim protected by our constitutions. The Condemnor 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 (EDPL §§ 303, 508). Chase Manhattan Bank, N.A. v State of New York, 103 AD2d 211, 221 [2d Dept 1984]; Matter of Mazur Bros. Realty, LLC v State of New York, 117 AD3d 949, 952 [2d Dept 2014].

As the Second Department stated in Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280, 282 [1994],

A condemnation proceeding is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. This means “just” to the claimant and “just” to the people who are required to pay for it. The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly. Where we find it is not *** we must remit for retrial upon the proper theory (Micali Cadillac-Oldsmobile v State of New York [Reiss], 104 AD2d 477, 481 (2d Dept 1984), quoting from Matter of County of Nassau, 43 AD2d 45, 48 (2d Dept 1973).

So, the rule is that if any appraisal is defective, the Claimant or Condemnor must be accorded the right to file a new appraisal. It may be that the fact that an appraisal is defective is not shown until trial. In this case, it may be too late to allow correction.

Posted in Appraisal, Defective Appraisal, Evidence
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