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MATTER CITY NEW YORK (12/15/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 15, 1969

IN THE MATTER OF THE CITY OF NEW YORK, RESPONDENT, RELATIVE TO ACQUIRING TITLE TO REAL PROPERTY, WITHIN THE AREA BOUNDED BY NOSTRAND AVENUE, AND OTHER STREETS IN THE BOROUGH OF BROOKLYN. HARRY MOSS ET AL., APPELLANTS

In a condemnation proceeding, claimants upon Damage Parcel 15 appeal, as limitedly by their brief, from so much of a final decree of the Supreme Court, Kings County, entered December 3, 1968 after a non-jury trial, as awarded them $15,500.

Christ, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.

In our opinion, the award of $15,500 for Damage Parcel 15 is inadequate in view of the expert testimony. Respondent's appraiser found the gross annual rental to be $3,000 and he estimated the expenses to be $1,209. Based on these figures the net annual rental is $1,791. Respondent's expert also deducted an additional $150 as a "reserve for contingencies", but this appears to be a largely overlapping deduction in view of a previous $100 deduction for a "replace reserve" and one which ought not to be made. Based on a net annual rental of $1,791 and using the land appraisal of respondent's expert who found the land to be valued at $4,125, it appears that the award was inadequate under the so-called "economic approach" to valuation (see Matter of City of Rochester [ Genesee Crossroads-Friedman ], 30 A.D.2d 634; Shafer Bldg. Corp. v. State of New York, 29 A.D.2d 832). If we impute to the land income of $247.50, by using a 6% capitalization rate for the land, the building is valued at $12,862.50 based on a 12% capitalization rate on the remaining annual income of $1,543.50. Adding the value of the building ($12,862.50) to the value of the land ($4,125.00), the total value would be $16,987.50. Accordingly, based on the figures of respondent's own expert, the award of $15,500 is inadequate under this approach. An award of $17,000 is warranted on this record.

Disposition

Decree reversed insofar as appealed from, on the law and the facts, with costs, and appellants' award increased to $17,000.

19691215

© 1998 VersusLaw Inc.



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