Liberty Fabrics, Inc. v. Corporate Properties Associates 5

Appellate Division of the Supreme Court of New York

Liberty Fabrics, Inc. v. Corporate Properties Associates 5

223 A.D.2d 457, 636 N.Y.S.2d 781, 1996 N.Y. App. Div. LEXIS 501

Appellate Division of the Supreme Court of the State of New York·Decided January 23, 1996·Published·Cited by 8 cases

Opinion

Judgment, Supreme Court, New York County (Diane Lebedeff, J.), entered March 24, 1995, which granted petitioner’s motion pursuant to CPLR 7601 to confirm the 1994 appraisal of five commercial properties, unanimously affirmed, with costs.

The IAS Court applied the proper standard in determining the motion since CPLR 7601 provides an agreement to submit a valuation question to an independent appraiser may be enforced by a court in the same manner as would an arbitration agreement under CPLR article 75. An appraisal determination should be upheld in the absence of fraud, bias or bad faith (see, Rice v Ritz Assocs., 88 AD2d 513, affd 58 NY2d 923). Here, respondents’ claim that petitioner fraudulently misrepresented the condition of the properties to the appraiser, causing the latter to significantly undervalue the property, is without merit, given that the appraiser itself examined each of the five properties prior to its determination. Moreover, the representations allegedly made were, with one exception, true, even if misunderstood by respondents; the other alleged representation, that one of the buildings was in "poor” condition, even if inaccurate, was insufficient to support a claim of fraud, especially in light óf the on-site inspection. Thus, respondents were not entitled to either discovery or a hearing pursuant to CPLR 409 (see, Matter of Bahar v Schwartzreich, 204 AD2d 441). Concur—Sullivan, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.

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Judgment, Supreme Court, New York County (Diane Lebedeff, J.), entered March 24, 1995, which granted petitioner’s motion pursuant to CPLR 7601 to confirm the 1994 appraisal of five commercial properties, unanimously affirmed, with costs.

The IAS Court applied the proper standard in determining the motion since CPLR 7601 provides an agreement to submit a valuation question to an independent appraiser may be enforced by a court in the same manner as would an arbitration agreement under CPLR article 75. An appraisal determination should be upheld in the absence of fraud, bias or bad faith (see, Rice v Ritz Assocs., 88 AD2d 513, affd 58 NY2d 923). Here, respondents’ claim that petitioner fraudulently misrepresented the condition of the properties to the appraiser, causing the latter to significantly undervalue the property, is without merit, given that the appraiser itself examined each of the five properties prior to its determination. Moreover, the representations allegedly made were, with one exception, true, even if misunderstood by respondents; the other alleged representation, that one of the buildings was in "poor” condition, even if inaccurate, was insufficient to support a claim of fraud, especially in light óf the on-site inspection. Thus, respondents were not entitled to either discovery or a hearing pursuant to CPLR 409 (see, Matter of Bahar v Schwartzreich, 204 AD2d 441). Concur—Sullivan, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.

Liberty Fabrics, Inc. v. Corporate Properties Associates 5, 223 A.D.2d 457, 636 N.Y.S.2d 781, 1996 N.Y. App. Div. LEXIS 501 (N.Y. Ct. App. 1996).

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223 A.D.2d 457 (Liberty Fabrics, Inc. v. Corporate Properties Associates 5) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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