Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY
(Brian J. Isaac of counsel), for appellant.
Montalbano, Condon & Frank, P.C., New City, NY (John E.
Finnegan of counsel), for respondent.
WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL L. PRISCILLA HALL
SANDRA L. SGROI, JJ.
DECISION & ORDER
proceeding pursuant to CPLR 7601 to enforce a commercial
lease provision regarding the appraisal of real property,
Vincent Galvano appeals from a judgment of the Supreme Court,
Rockland County (Alfieri, J.), dated August 9, 2015, which,
upon an order of the same court dated July 10, 2015, granting
the petitioner's motion to confirm a valuation report
regarding the property, is in favor of the petitioner
confirming the appraised value of the property as $1, 699,
that the judgment is affirmed, with costs.
proceeding pursuant to CPLR 7601, the petitioner property
owner sought to enforce a lease provision between it and the
appellant tenant, governing the fixing of future rent upon
the appellant's exercise of an option to renew the lease,
by seeking the appointment of an independent third party to
appraise the property as if it was vacant land. In accordance
with the terms of the lease, the Supreme Court appointed an
experienced Rockland County real estate broker to perform the
appraisal. Thereafter, the broker issued a valuation report
which assigned the property a value of between $1, 699, 000
and $1, 812, 000. The petitioner accepted the valuation of
$1, 699, 000 and moved to confirm the appraisal, while the
appellant argued that the property was grossly overvalued and
opposed confirmation. The court granted the petitioner's
motion and issued a judgment in favor of the petitioner,
confirming the appraised value of the property at $1, 699,
000 for the purpose of calculating the appellant's rent
under the option to renew.
appellant contends that the Supreme Court erred and
effectively rewrote the parties' lease by appointing a
real estate broker, rather than a licensed appraiser, to
perform the property valuation. However, the appellant cannot
be heard to complain regarding the broker's
qualifications, as he failed to raise any objection on this
basis at the time of the appointment, but instead waited to
challenge the broker's professional competence until
after she conducted a valuation and reached a determination
with which he disagreed (see generally A & L Vil.
Mkt., Inc. v 344 Vil., Inc., 140 A.D.3d 804, 806;
Matter of Atlantic Purch., Inc. v Airport Props. II,
LLC, 77 A.D.3d 824, 825; Matter of Glatzer v
Glatzer, 73 A.D.3d 1173, 1175; Matter of Raitport v
Salomon Smith Barney, Inc., 57 A.D.3d 904, 906). In any
event, the appellant's claim that only a licensed real
estate appraiser could perform the valuation finds no support
in the law (see Executive Law § 160-b), in
the terms of the parties' lease, which expressly
authorized the appointment of a real estate broker for that
purpose, or in the prior orders in this proceeding, which
merely observed that the lease contemplated that the
valuation of the property should be achieved through an
appraisal rather than arbitration.
is appointed by the court to determine the value of property
possesses " wide discretion as to the methods of
procedure and sources of information'" to be
utilized in reaching a determination (Grosz v Serge
Sabarsky, Inc., 24 A.D.3d 264, 266, quoting Rice v
Ritz Assoc., 88 A.D.2d 513, 514). Moreover,
"[a]ppraisers are not limited to a single method of
valuation unless the lease provides otherwise"
(Olympia & York 2 Broadway Co. v Produce Exch. Realty
Trust, 93 A.D.2d 465, 468; see Grosz v Serge
Sabarsky, Inc., 24 A.D.3d at 266; Matter of
Builtland Partners v Jack LaLanne Biltmore Health Spa,
109 A.D.2d 662, 663). Since the lease in this case prescribed
no particular valuation methodology, the broker was not
obligated to employ the Uniform Standards for Professional
Appraisal Practices in reaching her valuation.
appraisal will not be set aside absent proof of fraud, bias,
or bad faith (see Kroboth v Brent, 262 A.D.2d 837,
838; Liberty Fabrics v Corporate Props. Assoc. 5,
223 A.D.2d 457; Olympia & York 2 Broadway Co. v
Produce Exch. Realty Trust, 93 A.D.2d at 472; Rice v
Ritz Assoc., 88 A.D.2d at 514). Here, the purported
factual errors and conflicting expert opinion presented by
the appellant were insufficient to make the requisite showing
for rejection of the challenged appraisal.
the Supreme Court properly granted the petitioner's
motion to confirm the valuation and entered a ...