MATTER OF WERB v. De Garmo

New York Court of Appeals

MATTER OF WERB v. De Garmo

464 N.E.2d 481, 62 N.Y.2d 636, 476 N.Y.S.2d 113, 1984 N.Y. LEXIS 4261

CourtNew York Court of Appeals

DecidedApril 3, 1984

StatusPublished

Cited by4 cases

This text of 464 N.E.2d 481 (MATTER OF WERB v. De Garmo) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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MATTER OF WERB v. De Garmo, 464 N.E.2d 481, 62 N.Y.2d 636, 476 N.Y.S.2d 113, 1984 N.Y. LEXIS 4261 (N.Y. 1984).

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Opinion

OPINION OF THE COURT

Memorandum.

The judgment appealed from and order brought up for review should be affirmed, with costs.

Appellants, owners of a 28-building apartment complex, commenced this tax certiorari proceeding to review the assessments on their property for the tax years 1977-1978, 1978-1979 and 1979-1980. The court relied primarily on the income capitalization method for determining the value of the property. Deducted from annual gross income were amounts representing items of expense, including maintenance. Part of the maintenance expense was a reserve for replacing the items of personalty, such as carpeting and appliances. After determining the capitalized value of the property, the trial court further deducted the depreciated value of the personal property. The Appellate Division modified the judgment, finding that by deducting maintenance expense from annual gross income, the value of the personalty was already excluded from the calculation of fair market value, so that the subsequent subtraction of depreciated value of the personalty resulted in a *638 double deduction. On remittal, the trial court recalculated the assessments in accordance with the findings of the Appellate Division, now before us for review.

No one questions that the value of appellants’ personalty-should be excluded from the ad valorem tax in issue (Real Property Tax Law, § 300). The only issue raised is whether this result was accomplished upon deduction of the maintenance reserve. The findings of fact made by the Appellate Division as to the value of appellants’ real property more closely comport with the weight of the evidence than the findings of the trial court, and we therefore affirm. (See Matter of Marine Midland Props. Corp. v Srogi, 60 NY2d 885, 887.) While neither calculation may perfectly achieve the objective, by permitting deduction of both the maintenance reserve and the depreciated value, appellants would in effect be credited with more than the value of the personalty.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

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OPINION OF THE COURT

Memorandum.

The judgment appealed from and order brought up for review should be affirmed, with costs.

Appellants, owners of a 28-building apartment complex, commenced this tax certiorari proceeding to review the assessments on their property for the tax years 1977-1978, 1978-1979 and 1979-1980. The court relied primarily on the income capitalization method for determining the value of the property. Deducted from annual gross income were amounts representing items of expense, including maintenance. Part of the maintenance expense was a reserve for replacing the items of personalty, such as carpeting and appliances. After determining the capitalized value of the property, the trial court further deducted the depreciated value of the personal property. The Appellate Division modified the judgment, finding that by deducting maintenance expense from annual gross income, the value of the personalty was already excluded from the calculation of fair market value, so that the subsequent subtraction of depreciated value of the personalty resulted in a *638 double deduction. On remittal, the trial court recalculated the assessments in accordance with the findings of the Appellate Division, now before us for review.

No one questions that the value of appellants’ personalty-should be excluded from the ad valorem tax in issue (Real Property Tax Law, § 300). The only issue raised is whether this result was accomplished upon deduction of the maintenance reserve. The findings of fact made by the Appellate Division as to the value of appellants’ real property more closely comport with the weight of the evidence than the findings of the trial court, and we therefore affirm. (See Matter of Marine Midland Props. Corp. v Srogi, 60 NY2d 885, 887.) While neither calculation may perfectly achieve the objective, by permitting deduction of both the maintenance reserve and the depreciated value, appellants would in effect be credited with more than the value of the personalty.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

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464 N.E.2d 481, 62 N.Y.2d 636, 476 N.Y.S.2d 113, 1984 N.Y. LEXIS 4261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-werb-v-de-garmo-ny-1984.

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