ARS Invs. II 2012-1 HVB, LLC v BlackMeadow Rd. LLC

ARS Invs. II 2012-1 HVB, LLC v BlackMeadow Rd. LLC 2016 NY Slip Op 08436 Decided on December 15, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2016
Mazzarelli, J.P., Andrias, Saxe, Feinman, Gische, JJ.
2211 380686/11

[*1]ARS Investors II 2012-1 HVB, LLC, Plaintiff-Respondent,

v

BlackMeadow Road LLC, et al., Defendants-Appellants.

Becker & Poliakoff, New York (James J. Mahon of counsel), for appellants.

Norris McLaughlin & Marcus, P.A., New York (Melissa A. Peña of counsel), for respondent.

Deficiency judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered August 14, 2015, confirming and ratifying a referee's report of the sale of the mortgaged premises, dated March 19, 2014, and awarding plaintiff a sum of money, unanimously affirmed, with costs.

Plaintiff established prima facie through its expert's appraisal "the fair and reasonable market value of the mortgaged premises" (RPAPL 1371[2]; see White Knight NYC Ventures, LLC v 15 W. 17th St., LLC, 110 AD3d 576 [1st Dept 2013]). Defendants failed to establish that the highest and best use of the property was something other than the existing use, on which plaintiff's

expert based his appraisal (see National Bank of N. Am. v Systems Home Improvement, 69 AD2d 557, 562-563 [2d Dept 1979], affd 50 NY2d 814 [1980]; BTC Mtge. Invs. Trust 1997-SI v Altamont Farms, 284 AD2d 849 [3d Dept 2001]). Defendants' expert did not show that it was "reasonably probable that the asserted highest and best use could or would have been made of the subject property in the near future" (see National Bank of N. Am., 69 AD2d at 563). The trial court appropriately rejected defendants' expert's testimony as being speculative and devoid of factual foundation support (see BTC Mtge. Invs. Trust 1997-SI at 850).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2016

CLERK