Garsky v. Kondzielaski

Appellate Division of the Supreme Court of New York

Garsky v. Kondzielaski

113 A.D.2d 834, 494 N.Y.S.2d 5, 1985 N.Y. App. Div. LEXIS 52477

Appellate Division of the Supreme Court of the State of New York·Decided September 16, 1985·Published·Cited by 1 cases

Opinion

In consolidated proceedings pursuant to Real Property Tax Law article 7 to review assessments on certain real property (premises known as 1160 Midland Avenue and 1180 Midland Avenue, City of Yonkers) for the tax years 1978/1979, 1979/1980, 1980/1981, and 1981/1982, the appeal is from an order and judgment (one paper) of the Supreme Court, Westchester County (Burchell, J.), dated July 18, 1983, which reduced the assessments for each of the years under review.

Order and judgment modified, on the law and the facts, by increasing the amounts which the trial court found were "correct” assessments, (1) for 1160 Midland Avenue, for the tax year 1980/1981, from $627,888 to $646,561.21; (2) for 1160 Midland Avenue, for the tax year 1981/1982 from $610,073 to $651,746.38; (3) for 1180 Midland Avenue, for the tax year 1980/1981, from $531,779 to $547,593.54; and (4) for 1180 Midland Avenue, for the tax year 1981/1982, from $502,366 to [835]*835$536,682.17. As so modified, order and judgment affirmed, without costs or disbursements.

Although the city argues that the trial court gave too much weight "to the incredible testimony of petitioner’s expert” and that petitioner failed to prove a prima facie case, we find that the court reviewed the evidence in the record, utilized its own capitalization rates within the range of the evidence and that there is no basis for disturbing its findings of fair market value (see, People ex rel. MacCracken v Miller, 291 NY 55, 61-62; Matter of Garsky v Kondzielaski, 113 AD2d 835).

On oral argument of this appeal and the companion appeal (see, Matter of Garsky v Kondzielaski, supra), the attorneys for the respective parties stipulated to the use of the ratios set forth in the City of Yonkers’ written responses to petitioner’s CPLR 3123 notices to admit truth of facts. Application of these ratios to the trial court’s valuations requires that for the tax years 1980/1981 and 1981/1982 the "correct” assessments found by trial court (column 2) be modified (column 3):

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In consolidated proceedings pursuant to Real Property Tax Law article 7 to review assessments on certain real property (premises known as 1160 Midland Avenue and 1180 Midland Avenue, City of Yonkers) for the tax years 1978/1979, 1979/1980, 1980/1981, and 1981/1982, the appeal is from an order and judgment (one paper) of the Supreme Court, Westchester County (Burchell, J.), dated July 18, 1983, which reduced the assessments for each of the years under review.

Order and judgment modified, on the law and the facts, by increasing the amounts which the trial court found were "correct” assessments, (1) for 1160 Midland Avenue, for the tax year 1980/1981, from $627,888 to $646,561.21; (2) for 1160 Midland Avenue, for the tax year 1981/1982 from $610,073 to $651,746.38; (3) for 1180 Midland Avenue, for the tax year 1980/1981, from $531,779 to $547,593.54; and (4) for 1180 Midland Avenue, for the tax year 1981/1982, from $502,366 to [835]*835$536,682.17. As so modified, order and judgment affirmed, without costs or disbursements.

Although the city argues that the trial court gave too much weight "to the incredible testimony of petitioner’s expert” and that petitioner failed to prove a prima facie case, we find that the court reviewed the evidence in the record, utilized its own capitalization rates within the range of the evidence and that there is no basis for disturbing its findings of fair market value (see, People ex rel. MacCracken v Miller, 291 NY 55, 61-62; Matter of Garsky v Kondzielaski, 113 AD2d 835).

On oral argument of this appeal and the companion appeal (see, Matter of Garsky v Kondzielaski, supra), the attorneys for the respective parties stipulated to the use of the ratios set forth in the City of Yonkers’ written responses to petitioner’s CPLR 3123 notices to admit truth of facts. Application of these ratios to the trial court’s valuations requires that for the tax years 1980/1981 and 1981/1982 the "correct” assessments found by trial court (column 2) be modified (column 3):

Lazer, J. P., Thompson, Rubin and Kunzeman, JJ., concur.

Garsky v. Kondzielaski, 113 A.D.2d 834, 494 N.Y.S.2d 5, 1985 N.Y. App. Div. LEXIS 52477 (N.Y. Ct. App. 1985).

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