Author Archive | Michael Rikon

THE STANDARD OF REVIEW OF A VALUATION CASE ON APPEAL AND JUDICIAL BIAS

          On appeal of a condemnation or tax certiorari case what exactly is the Appellate Court standard of review?  The answer is not that simple.  Most decisions reviewing a valuation cause will state that since the matter before it was a bench trial, the Appellate Division may render the Judgment it finds warranted by the facts, taking into account the fact that the trial court had the advantage of seeing the witnesses.  Northern Westchester Professional Park Associates v Bedford, 60 NY2d 492 (1983).  Stated another way, where the trial court’s… read more

Posted in Burden of Proof, Standard of Review, Uncategorized
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EDPL SECTION 701: LEGAL FEES, APPRAISAL FEES AND DISBURSEMENT REIMBURSEMENTS

          The Second Department handed down Matter of City of Long Beach v Sun NFL Limited Partnership on May 15, 2019 ___ AD3d ___, 2016-13371.  The decision concerned an application for reimbursement of legal, appraisal fees and disbursements pursuant to EDPL Section 701.           The condemnor made a pre-vesting offer to the property owner of $2,080,000.  After trial the Supreme Court awarded $11.8 million.  Claimant sought an additional allowance totaling $2,024,412.           The trial court reduced the amount sought for attorneys’ fees and awarded $831,303.   The condemnor appealed and claimant… read more

Posted in Attorneys' Fees Reimbursement, EDPL Sec. 701, Uncategorized
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LITIGATING THE PUBLIC TRUST DOCTRINE IN NEW YORK. A PARK IS A PARK UNLESS IT’S NOT.

          New York’s highest court, the Court of Appeals, decided Matter of Glick v Harvey.[1]  The appeals court affirmed the reversal of a lower court order which enjoined New York University from beginning any construction in connection with its expansion project that would result in any alienation of three parcels of land found by the Court to be public parkland, unless and until the State Legislature authorizes the alienation of any parkland to be impacted by the project.  The decision itself provides very little factual information.  According to an article… read more

Posted in Condemnation, parklands, Public Trust Doctrine, Uncategorized
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PUBLIC USE MEANS JUST ABOUT ANY USE

          Arguing that the project will benefit a private party and that the proposed condemnation will there by violate the constitutional restraints against the condemning private party to give another private party will fail as long as it could be said the public purpose is dominant.  See Waldo’s, Inc. v Vill. Of Johnson City, 74 NY2d 718, 720 (1989); see also Yonkers Cmty. Dev. Agency v Morris, 27 NY2d 478, 482 (1975).           Virtually any purpose will be acceptable including the condemnation of a historic waterfront for a shopping mall… read more

Posted in Public Benefit, Public Purpose, Public Use, Uncategorized
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JUST COMPENSATION FOR GOODWILL

          The Fifth Amendment to the United States Constitution requires the court to award just and fair compensation.  But goodwill is rarely compensated.  Rather the courts will utilize a market approach unless property is truly unique, or to be exactly operated as before by the condemnor.  Matter of Nassau County (Lido Boulevard), 43 AD2d 45 (2d Dept 1973), afd. 39 NY2d 958 (1976).           State and federal courts have long ignored the mandate to pay just compensation for the goodwill of a business.  In New York, trade fixtures used for… read more

Posted in Going Concern, Goodwill, Uncategorized
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