Many lawyers believe that their opponents’ appraisal is so weak that a motion for summary judgment will bring them instant victory. The idea is usually not worth the effort for it is rare that summary judgment is appropriate in an eminent domain case.
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 § 202.61. See Miriam Osborn Memorial Home Assoc. v Assessor of City of Rye, 2004 NY Slip. Op. 50793(U) [West. Cty. Sup. Ct. 2004, Dickerson, J.].
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. In re Town of Guilderland, 267 AD2d 837 [3d Dept 1999] citing Homer v State of New York, 36 AD2d 333, 335 aff’d 30 NY2d 722 [1972].
The appraisal in and of itself is not designed to take the place of evidence Currie v State of New York, 34 AD2d 1027 [3d Dept 1970]. Rather, its function is to supplement the evidence given by the person under whose direction it is prepared. The appraisal should be utilized as a tool which, by adequate examination of its author, helps explain fully to the trial court what the theory of the party introducing the appraisal is so that the trier of the facts is made fully cognizant of what issues are involved in the proceeding. In addition, by delving into the aspects underlying the appraisal, the court will be furnished a record which will permit intelligent appellate review. Homer v State of New York, supra, 36 AD2d 333 [3d Dept 1971].
A trial court and the Appellate Division as well are bound by the testimony in the record. In re New York (A&W Realty Corp.), 1 NY2d 428, 433 [1956]. This does not mean, however, that an award may never be higher or lower than the experts’ estimates of value; it is only required that there be evidence at hand to support the value actually found by the court. It is the testimony which is important. See Gerosa, Inc. v State of New York, 180 AD2d 552 [1st Dept 1992].
If a party is denied the opportunity to present the direct testimony of its witnesses and other evidence, there will occur a total violation of due process.
The United States Supreme Court has held that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims or right and duty through the judicial process must be given a meaningful opportunity to be heard. Boddie v Connecticut, 401 US 371, 377 [1971].
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 Island Power Auth., 294 AD2d 348 [2d Dept 2002].
Summary judgment in a condemnation dismissing a claim has rarely been sustained because of the inherent factual issues presented which require a trial. Matter of Village of Spring Valley (Sport Club Intl., Inc.), 136 AD3d 832 [2d Dept 2016]; In re 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].
So the better move is to file a motion in limine.
In its purest sense, a motion in limine is an application brought on in the beginning or threshold of a trial which seeks to exclude anticipated prejudicial evidence. In State of New York v Metz, 241 AD2d 192, 198, the First Department stated, “generally, the function of a motion in limine is to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial or prejudicial evidence or limiting its use. Its purpose is to prevent the introduction of such evidence to the trier of fact, in most instances a jury.” The Metz case involved an action brought under the Martin Act alleging securities fraud. In the lower court, the State’s motion for summary judgment based on depositions taken unilaterally was denied and the use of same limited at trial. The Appellate Division reversed noting the function of an in limine evidentiary ruling and holding that the court should have required defendants to oppose the summary judgment motion.
In a condemnation case, where appraisals are generally exchanged long before trial, courts do not readily appreciate trial objections premised on a deficiency of, for example, an alleged violation of court rules. No judge will appreciate a party objecting to an appraisal for some perceived omission which could have been addressed prior to trial. We think this is true in all types of litigation, but especially in condemnation. What sets a condemnation case apart is the fact that an eminent domain proceeding is not a private litigation.
The major distinctions between the ordinary civil case and the condemnation claim is the constitutional obligation to pay just compensation to the former property owner. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. Yaphank Development Company, Inc. v County of Suffolk, 203 A.D.2d 280 [2d Dept 1994], citing Matter of County of Nassau [County Beach Club], 43 AD2d 45, aff’d 39 NY2d 958.
The courts have also stated that 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. Since the constitutional mandate is upon the court, it is the court that is responsible to assure that just compensation is awarded. Indeed, if it cannot do so, when for example both sides employ an improper theory of damages, the court must remit for retrial upon proper theory. Frank Micali Cadillac-Oldsmobile, Inc. v State of New York, 104 AD2d 477 [2d Dept 1984].
An example of an appropriate in limine motion in a condemnation case is an application to exclude evidence and testimony relating to environmental contamination remediation costs. See Matter of City of New York v Mobil Oil Corporation, 2005 N.Y. Misc. Lexis 1038 (Gerges, J.) Affirmed 12 AD3d 77 [2d Dept 2004]. Also see D’onofrio v. Village of Port Chester, 2005 N.Y. Misc. Lexis 1461 (Dickerson, J.)
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