New York is one of three states in the union that does not provide for jury trials in condemnation matters.  Not only that, but there is a designated justice who is assigned to hear condemnation cases in every county.  Many of our out of state colleagues who practice eminent domain law find that having the same judge is almost as incredible as not having a jury.

Most of the time, the judges assigned to the condemnation part are interested in the subject and become experts in the law.  Some courts are remarkable for their interest in a case and their sense of fairness to both the claimant and condemnor.  There are, on the other hand, some judges who just do not understand that condemnation is not typical litigation.  There is a failure to recognize that a condemnation claim is constitutionally protected.  Indeed, on some occasions, judges assigned to the condemnation part seemingly agree with every argument advanced by a condemnor without reason.

Another unfortunate consequence is not scheduling trials or deciding motions pending for prolong periods of time.  Resort certainly can be made, after first requesting the court itself to render relief, to writing the administrative judge.

Decisions which fail to adhere to the law can be appealed.  But, make no mistake about it, an appellant still has an uphill battle no matter how egregious the lower court decision.

Presently, we are filing an appeal from an order which granted a condemnor’s motion to strike claimant’s appraisal because it used an earlier date of a first taking as the date of valuation.  The court went further and struck the appraisal entirely granting summary judgment dismissing the entire condemnation claim.  In our mind, the lower court’s decision clearly indicates a court that has no understanding of eminent domain.  What follows are excerpts from the brief we are filing.

A condemnation proceeding is not a private litigation.  Eminent domain is not your typical litigation.  The former owner, now a claimant, did not ask for its property to be taken for a public purpose.

The well-established Law of this State has consistently pointed out that what may be normal in litigation between private parties does not apply in a condemnation proceeding which involves a claim protected by our constitutions.  The condemnor has an independent obligation to pay just compensation and, in connection therewith, to present its own appraisal of the property’s highest use and value (EDPL 303, 508).  Chase Manhattan Bank, N.A. v State of New York, 103 AD2d 211, 221 (2d Dept 1984); Matter of Mazur Bros. Realty, LLC v State of New York, 117 AD3d 949, 952 (2d Dept 2014).

As the Second Department stated in Yaphank Dev. Co. v County of Suffolk, 203 AD2d 280, 282 (1994),

A condemnation proceeding is not a private litigation.  There is a constitutional mandate upon the court to give just and fair compensation for any property taken.  This means “just” to the claimant and “just” to the people who are required to pay for it.  The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly.  Where we find it is not *** we must remit for retrial upon the proper theory (Micali Cadillac-Oldsmobile v State of New York [Reiss], 104 AD2d 477, 481 (2d Dept 1984), quoting from Matter of County of Nassau, 43 AD2d 45, 48 (2d Dept 1973).

In the matter on appeal, the Condemnor improperly moved to dismiss the claim based on its argument that the correct valuation date should be the second vesting.  In doing so, it failed to acknowledge that the claim for just compensation was constitutional in nature.  It also failed to comply with its independent obligation to pay just compensation and, in connection therewith, to present its own appraisal of the property’s highest use and value.  Chase Manhattan Bank, N.A. v State of New York, supra, 103 AD2d 211, 221 (2d Dept 1984).

The Court committed egregious error by striking the appraisal and dismissing the claim.  Town of Cheektowaga v Starlite Builders, Inc., 247 AD2d 933 (4th Dept 1998).

If the Condemnor was correct and the second vesting should have been the valuation date, the Court should have ordered the filing of an amended appraisal reflecting that date, not dismissing the claim.  Yaphank Dev. Co. v County of Suffolk, supra, 203 AD2d 280 (2d Dept 1994); Frank Micali Cadillac-Oldsmobile, Inc. v State of New York, 104 AD2d 477 (2d Dept 1984).

An appraisal presents a pure factual presentation of data and information utilized by an expert to conclude to an opinion of value.  In New York State, an appraisal is required to be exchanged and filed pursuant to Court Rule.  22 NYCRR Sec. 202.61.  See Miriam Osburn Memorial Home Assoc. v Assessor of Rye, 2004 N.Y. Slip. Op. 50793 (U) (West. Sup. Ct. 2004).

The Appraisal Rule allows the parties to prepare for trial with knowledge of each other’s valuations and the foundations and justifications thereof.  Parisi v State, 62 Misc2d 378, 382 (Ct. Cls., 1979).  As the Fourth Department stated in Novickis v State of New York, 44 AD2d 508, 512 (4th Dept 1974), “[s]imply expressed, the rule attempts to require full disclosure, to take the game aspect out of the case, to prevent surprises, to permit the court to determine just compensation based solely upon the facts unhindered by gamesmanship.”

Most eminent domain trials involve complicated factual issues involving critical determinations that must be made by a court.  Not only are there issues of highest and best use of the land, both before and after a partial taking, but there are critical issues involving comparable sales and valuation.

Case law emphatically holds that an appraisal is not the substitute for an expert’s direct testimony.  The appraisal report is not in itself evidence; its function is to enable adequate and intelligent preparations of the issues for trial and to limit expert testimony at trial.  It is not intended as a substitute for evidence.  A trial is required to place the appraisal reports and other evidence before the trier of facts to establish the value of the property taken.  Matter of Town of Guilderland, 267 AD2d 837 (3d Dept 1999) citing Homer v State of New York, 36 AD2d 333, 335 affd 30 NY2d 722 (1972).

Summary Judgment is a drastic remedy that deprives a litigant of his or her day in court, and should only be employed when there is no doubt as to the absence of triable issues.  Kolivas v Kirchoff, 14 AD3d 493, 493 (2d Dept 2005) citing Andre v Pomeroy, 35 NY2d 361 (1974).  The function of the Court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.  Scott v Long Is. Power Auth., 294 AD2d 348 (2d Dept 2002).

Summary Judgment in a condemnation dismissing a claim has never been sustained because of the inherent factual issues presented which require a trial.  Matter of Spring Valley v Sport Club Intl., Inc., 136 AD3d 832 (2d Dept 2016); Matter of Dormitory Authority of State of New York (Milo Press, Inc.), 172 AD2d 401 (1st Dept 1991); Town of Cheektowaga v Starlite Builders, Inc., supra, 247 AD2d 933 (4th Dept 1998).

Stay tuned.  We will update in about nine months.


Posted in Appraisal, Appraisal Rule, Date of Valuation, Summary Judgment


  1. Refaat M. Sawires August 12, 2017 at 3:50 pm #

    A great in depth analysis supported with precedent courts decisions.
    Mr.Rikon has emphasized the constitutional rights of the claimnents for a fair compensation and a speedy process and not taking advantage of the inability of the claimants of having a jury trial.
    I applued Mr. Rikon’s ability to send a clear message to the courts and vigorously defending his clients rights.

    In my pending case of Staten Island Wet land
    ” New Creek Bluebelt, phase 4″
    Block 3663, Lots 1& 11

    After all the efforts made by your law firm to satisfy NYC Law Dept& the Courts during the past 10 years, no sign of resolution seems imminent.

    Thank you and your dedicated legal Counsels for your sincere efforts.

    W A I T I N G !

    Refaat M. Sawires


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