Michael Rikon recently authored an article in the New York Law Journal discussing the use of prior appraisals in eminent domain litigation proceedings.
In the article, Mr. Rikon explains under Eminent Domain Procedure Law section 303, the condemning authority must authorize an advance payment based on its highest approved appraisal. However, often times at trial, the condemnor will introduce a subsequent appraisal at a lower amount, exposing the claimants to a potential judgment if the trial court accepts the state’s appraisal as the fair market value on title vesting date. EDPL 304(h). Mr. Rikon explains, “thus, not only will the property owner lose its property, but it coudl wind up owing the state money for the privilege.”
In that situation, when a different, lower, appraisal is used at trial, the prior appraisal can only be introduced into evidence if it has been “adopted” by the condemnor. The article explains that this often occurs when then the condemnor submits the document to the federal government to demonstrate compliance with federal regulations in order to obtain funds for reimbursement. See: Barnes v. State of New York, 67 AD2d 1065 (3d Dep’t 1979). Mr. Rikon argues that there are other situations where an appraisal should be deemed “adopted”; and thus be admissible. Among these are when the report is used to set the consideration of a sale of the property to a developer, and when the unfiled appraisal is disclosed to third parties.
Finally, Mr. Rikon discusses that under the Uniform Standards of Professional Appraisal Practice, appraisers must retain work files for all appraisals performed, as well as any draft appraisal reports prepared. These draft reports are discoverable and can be used for cross examination purposes if the appraiser testifies. Matter of Hicksville Properties v Board of Assessors, 116 AD2d 717 (1986).
The article, published April 22, 2014, is available by clicking here.
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