Empire Discount Corp. v. Three D. Bldg. Corp.

Appellate Division of the Supreme Court of New York

Empire Discount Corp. v. Three D. Bldg. Corp.

23 A.D.2d 958, 261 N.Y.S.2d 140, 1965 N.Y. App. Div. LEXIS 4129

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 20, 1965

StatusPublished

This text of 23 A.D.2d 958 (Empire Discount Corp. v. Three D. Bldg. Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Empire Discount Corp. v. Three D. Bldg. Corp., 23 A.D.2d 958, 261 N.Y.S.2d 140, 1965 N.Y. App. Div. LEXIS 4129 (N.Y. Ct. App. 1965).

Pincite

Opinion

Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The determination of the value of the premises was against the weight of evidence. Although the court could consider the so-called “Neisner” lease in fixing value, it was error on the facts in this ease to rely on the highly speculative capitalization of net rental income particularly the factor of estimated gross sales (Levin v. State of New York, 13 N Y 2d 87). In view of the fact that this proceeding was limited by the original motion and the proof offered to a determination of the value of the mortgaged premises as bearing on the plaintiff’s right to a deficiency judgment, wo do not reach or pass upon the last ordering paragraph of the order dated April 26,1963 which vacates an earlier order with respect to certain proceeds from an appropriation award. A new trial should be had on the issue of the value of the property. (Appeal from judgment and order of Monroe County Court, fixing the market value and denying plaintiff’s motion for a deficiency judgment.) Present —Williams, P. J., Bastow, Goldman, Noonan and Del Vecehio, JJ.

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Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The determination of the value of the premises was against the weight of evidence. Although the court could consider the so-called “Neisner” lease in fixing value, it was error on the facts in this ease to rely on the highly speculative capitalization of net rental income particularly the factor of estimated gross sales (Levin v. State of New York, 13 N Y 2d 87). In view of the fact that this proceeding was limited by the original motion and the proof offered to a determination of the value of the mortgaged premises as bearing on the plaintiff’s right to a deficiency judgment, wo do not reach or pass upon the last ordering paragraph of the order dated April 26,1963 which vacates an earlier order with respect to certain proceeds from an appropriation award. A new trial should be had on the issue of the value of the property. (Appeal from judgment and order of Monroe County Court, fixing the market value and denying plaintiff’s motion for a deficiency judgment.) Present —Williams, P. J., Bastow, Goldman, Noonan and Del Vecehio, JJ.

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Bluebook (online)

23 A.D.2d 958, 261 N.Y.S.2d 140, 1965 N.Y. App. Div. LEXIS 4129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/empire-discount-corp-v-three-d-bldg-corp-nyappdiv-1965.