Archive | 2018

THE REBUTTABLE PRESUMPTION OF VALIDITY OF VALUATION MEANS THAT TAX VALUATION CAN BE CHALLENGED

Tax Certiorari cases are difficult enough but, should not be impossible.  The Fourth Department recently decided a case, Buscaglia v Assessor, Town of Hamburg, 2018 N.Y. App. Div. Lexis 4854 [4th Dept 2018], where it reversed an Order of Supreme Court, Erie County, which dismissed petitions to reduce assessed taxes. The property involved a waterfront parcel on Lake Erie.  The parties stipulated to the admission in evidence of their respective appraisal reports.  The Court agreed with the assessor that petitioner failed to overcome the legal presumption that respondents’ assessment was… read more

Posted in Appraisal Evidence, Rebuttable Presumption, Substantial Evidence
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A CONDEMNOR CAN KEEP TRYING TO CONDEMN – UNTIL IT GETS IT RIGHT

The Third Department handed down a decision on June 21, 2018 in Johnson v Town of Caroga, ___ AD3d ____ (3d Dept 2018).  This was a challenge pursuant to EDPL 207 to a “Determination and Findings” adopted by the Town to acquire a roughly 15-foot-wide strip of land for the purposes of providing expanded access to a recreational trail.  There was an earlier and successful challenge.  Matter of Johnson v Town of Caroga, 157 AD3d 1025 (2018).  The Town issued resolutions recommencing the eminent domain process and this time got… read more

Posted in Challenges to Determination and Findings, EDPL 207
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CONDEMNATION’S MIGHTY HAND

It surprises some that eminent domain in New York can be utilized to acquire property interests other than real estate fee title and trade fixtures.  Section 103(F) of the Eminent Domain Procedure Law (EDPL) defines real property as including “all land and improvements, …all easements and hereditaments, corporeal or incorporeal, and every estate, interest and right, legal or equitable, in lands or water, and right, interest, privilege, easement and franchise relating to the same, including terms for years and liens by way of mortgage or otherwise.” Section 708 of the… read more

Posted in EDPL Section 708, Personal Property, Right of First Refusal
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CAREFUL JUDGE – THAT CONDEMNATION IS CONSTITUTIONALLY PROTECTED

We have written on this subject before, but somehow some judges do not get it.  A condemnation proceeding is not like private litigation.  A condemnation claim is the enforcement of a constitutional mandate that just compensation be paid. Even if the claimant fails in the burden of proof, it is not that he will be non-suited and receive no compensation.  Rather, in this worst-case scenario, the claimant will simply receive the amount proven by the condemnor.  In New York, the burden of proof is on the court to assure that… read more

Posted in Burden of Proof, Offer & Compensation, Trial Preparation
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THINK TWICE BEFORE AGREEING TO ALLOW STREET ARTISTS TO PAINT ON YOUR BUILDING

The United States District Court for the Eastern District of New York refused to set aside the Court’s findings of fact and conclusions of law and grant a new trial to Cohen et al. v G & M Realty L.P. et anos, Case No. 13-CV-05612 (FB) (RLM).  In an unusual decision, Senior District Judge Frederic Block awarded $6,750,000 as statutory damages for the willful destruction of Plaintiffs’ works of visual art by Defendant Gerald Wolkoff.  The art was graffiti on a group of dilapidated buildings in Long Island City, Queens. … read more

Posted in Graffiti, Protected Art, Visual Artists Rights Act of 1990
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