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Roth v. City of Syracuse

Court of Appeals of New York

June 11, 2013

In the Matter of Norman E. ROTH et al., Appellants,
v.
CITY OF SYRACUSE et al., Respondents. (And Other Proceedings.).

Page 412

[Copyrighted Material Omitted]

Page 413

[972 N.Y.S.2d 162] Hancock Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for appellants.

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), and Mary Anne Doherty, Corporation Counsel (Shannon M. Jones of counsel) for respondents.

New York State Conference of Mayors and Municipal Officials, Albany (Jane E. Tsamardinos of counsel), and Association of Towns of the State of New York (Michael E. Kenneally, Jr., of counsel) for New York State Conference of Mayors and Municipal Officials and another, amici curiae.

Page 414

OPINION

RIVERA, J.

[995 N.E.2d 124] In this Real Property Tax Law article 7 proceeding challenging the tax assessments of certain residential properties located in Syracuse, New York, petitioner contends that the trial court erred by failing to consider the impact of contamination— specifically, lead paint— upon the market value of the properties. We hold that petitioner failed to rebut the presumption of validity that attaches to the tax assessments of the properties by the City of Syracuse. That is, petitioner failed to proffer substantial evidence demonstrating a diminution in market value to his properties caused by the mere presence of lead paint.

In this action, petitioner challenges the valuation by the City's Board of Assessment Review of five single-family, five-bedroom houses near Syracuse University used as rental housing for local college students. Petitioner commenced an RPTL article 7 proceeding to challenge the tax assessments of each property for the years 2001-2004, alleging that the City had overvalued the homes by a total of $825,000 over the four-year period. Specifically, petitioner alleges that the property valuations did not account for the adverse effect that the presence of lead paint would have [995 N.E.2d 125] [972 N.Y.S.2d 163] upon market value.[1]

At the nonjury trial, on these consolidated proceedings, petitioner presented the expert testimony of G. Richard Kelley, a licensed real estate appraiser who concluded that the fair

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market value of the properties had been negatively impacted by the presence of lead-based contaminants. Based upon an inspection of the properties, and pertinent income and expense data, Mr. Kelley adopted an income capitalization method that determines market value based upon a property's ability to generate income. Under this approach, Mr. Kelley first determined the hypothetical non-contaminated market values of the five properties. Mr. Kelley then relied upon the testimony of other witnesses, certified environmental testing companies and contractors hired by petitioner, who had examined the interiors, exteriors and soil of the five properties in 2008, and had positively confirmed the presence of lead-based contaminants. Those witnesses had proposed the approximate remediation and construction costs that would be incurred to remove the lead paint conditions from each property. Reducing the non-contaminated market values of the properties by their respective " cost to cure" figures, Mr. Kelley concluded that each of the five properties had a market value of $1 for each year from 2001-2004.[2] Petitioner, however, continues to profit from the rental income generated by the five properties. Further, the lead paint conditions have not been abated, and therefore, no remediation costs have been incurred.

The City's expert, William J. Kimball, a licensed real estate appraiser, determined the market value of the five properties using both a sales comparison approach and an income capitalization method. Under both methods, however, Mr. Kimball concluded that the mere presence of lead paint, without more, did not diminish the market value of the five properties. Local property owners and brokers indicated that lead-based paint would have no adverse effect upon either the sales of the properties or their continued profitable use as student rental housing. ...


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