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June 20, 2018

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

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Posted in Burden of Proof, Offer & Compensation, Trial Preparation
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August 28, 2015

New York Law Journal: The Condemnation Expert’s File: Minefield for Cross-Examination

Michael Rikon recently authored a column published in the New York Law Journal titled The Condemnation Expert’s File: Minefield for Cross-Examination. In condemnation cases, each side hires an expert to prepare an opinion on the value of the property. As Mr. Rikon explains in the article, once that expert testifies at trial, his or her work file becomes discoverable by the opposing side, and is often rife with material for cross-examination. This material can range from inaccurate data or the use of a faulty valuation method, to evidence of coaching,… read more

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Posted in Appraisers, Lawyers, Offer & Compensation, Recent cases, Sandbagging, Trial Preparation, USPAP
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October 15, 2014

Games Condemnors Play: When Appraisers Lose Credibility

  In his book, “Expert Witness in the Legal System: A Scientist’s Search for Justice,” Morris S. Zedek wrote that in 2001, the Committee on Criminal Advocacy of the Association of the Bar of the City of New York surveyed judges about the prevalence of perjury in the New York metropolitan area. In regard to expert witnesses, of the thirty judges who responded, 50 percent said they encountered occasional perjury. This is not surprising to a trial lawyer. In condemnation cases, most reputable appraisers do not commit perjury. They may… read more

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Posted in Appraisers, Eminent Domain, Highest and Best Use, New York, Recent cases, Trial Preparation
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October 31, 2013

The Burden of Proof in a Condemnation Case

States differ in their approach to the question of who has the burden of proof in a condemnation case, an issue discussed more thoroughly in Michael Rikon’s recent article published in the Practical Real Estate Lawyer. As Mr. Rikon explains, there are essentially three separate groups: those that have no burden of proof on the issue of damages, those that place the burden of proof on the claimant, and those that require the condemnor to prove its assay of damages. In New York, the burden of proof is on the… read more

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Posted in Condemnation Procedures, Eminent Domain, Highest and Best Use, New York, Offer & Compensation, Trial Preparation
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October 25, 2013

NYLJ: Expert Witnesses in Condemnation & Tax Certiori Cases

Michael Rikon recently published an article in the New York Law Journal titled “The Expert Witness in Condemnation and Tax Certiori Cases” wherein he discusses the factors practitioners must consider in deciding whether and which expert witnesses to call in each case. As Mr. Rikon points out, the two cases use two different valuation methodologies. In tax assessment cases, property is valued as is, while in condemnation proceedings, property is valued based on its highest and best use, regardless of its actual use. Additionally, a reasonable probability of rezoning can… read more

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