Matter of City of New York

[*1] Matter of City of New York 2008 NY Slip Op 52260(U) [21 Misc 3d 1127(A)] Decided on November 10, 2008 Supreme Court, Kings County Gerges, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 10, 2008
Supreme Court, Kings County

In the Matter of the Application of the City of New York relative to acquiring title in fee simple, where not heretofore acquired for the Sanitation Garage Brooklyn District 3 and 3a.



37905/03



The attorneys are as follows:

Corporation Counsel

100 Church Street

New York, NY 10007

Fred Kolikoff, Esq.

For the claimant:

Snitow Kanfer Holtzer & Millus

575 Lexington Avenue

New York, NY 10022

Stewart J. Epstein, Esq.

Goldberg Rimberg & Friedlander

115 Broadway

New York, NY 10006

Robert Rimberg, Esq.

Bruce Levinson, PC

747 3rd Avenue

New York, NY 10017

Greg Brown, Esq.

Abraham Gerges, J.

In this eminent domain proceeding, the City of New York (the City) moves for an order precluding claimant Congregation Adas Yereim (the Congregation) from offering into evidence the appraisal report dated June 15, 2005 (the Appraisal Report), prepared by Fieldstone Advisors, LLC (Fieldstone).[FN1] In its affirmation in opposition, claimant argues that in the event that the City's motion is granted, it should be permitted to submit an amended Appraisal Report.

Facts and Procedural Background

By order dated December 1, 2004, the City acquired title to the subject property, 48 Warsoff Place (Block 1718, Lot 15), located in the Bedford-Stuyvesant neighborhood of Brooklyn, bordering on Williamsburg. As of the date of vesting, December 8, 2004, the 48,000 square foot parcel of property was vacant land and zoned M1-2 for use for light manufacturing.

The Parties' Contentions

The City

In support of its motion, the City argues that although the property was zoned M1-2 on the date of vesting, claimant's Appraisal Report values the property as if it would be developed for residential use. In this regard, the City alleges that claimant's appraiser was under the impression that at the time of vesting, an application for a zoning variance that would permit multi-family residential development was pending before the Board of Standards and Appeals. More specifically, the report states, in pertinent part, that:

"Congregation Adas Yereim had an application pending and had hearings before the New York City Board of Standards and Appeals for a zoning variance, to permit the construction of four residential buildings containing a total of 90-units. In addition, there was also an application pending for a special permit to allow the construction of a five-story school with cellar and sub cellar (46,950 square feet above grade) on part of the site (13,600 square feet). Included in the plans were 38 parking spaces. The City defendants opposed the application because of the plans to construct a sanitation garage and the application was accordingly withdrawn on February 12, 2002. . . .

"We have concluded that the highest and best use of subject site, as of December 8, 2004, was to be determined subject to a special permit for a school and zoning variance for multi-family residential development. . . . [*2]

"There was also an application pending for a zoning variance to build four residential buildings containing 90-units. Hearings had started before the Board of Standards and Appeals."

(Appraisal Report at 8, 29 and 32).

The City further alleges that the attorney for the Congregation conceded in court on June 6, 2008 that although it was possible that the Congregation intended to file an application to build residential buildings in the future, no application for a zoning variance had been submitted to the Board of Standards and Appeals as of the date of vesting. Hence, the Appraisal Report seems to suggest that had such an application been filed, a variance would have been granted. Inasmuch as the Congregation submits no evidence to support this allegation, the City concludes that claimant should be precluded from introducing the Appraisal Report at trial.

Claimant

In opposition to the motion, in reliance upon an affirmation from counsel and an affidavit [FN2] submitted by David E. Fields, its expert appraiser, claimant alleges that it purchased the property in January 2000 for $2,250,000 for the purpose of constructing a school and multi-family residential homes. As of the date of vesting, it had already begun the process of applying for the necessary special permit and variance. When the City advised claimant that it would oppose the zoning applications because it intended to condemn the property for use as a sanitation garage, the Congregation withdrew the application.

Claimant contends, however, that although an application to obtain a variance had not been filed as of the date of vesting, the Appraisal Report bases its valuation of the fair market value on all of the relevant criteria accepted in the industry and by the court. More specifically, claimant alleges that the Report provides a through analysis of the property location; zoning; real estate assessment and taxes; the manufacturing uses that had historically been made of property in the area; the economic and market outlook; projected uses; the Brooklyn condominium market; a shift in the use of nearby properties; and the Greenpoint-Williamsburg Land Use and Waterfront Plan, a large scale zoning change allegedly intended to facilitate new housing development along the waterfront. Claimant avers that the Report then goes on to value the property, taking into account the physical possibilities, legal possibilities and market support to determine that the property's highest and best use is for residential development in view of the development trend in the area. The Report accordingly states that:

"There was a reasonable probability that the property would have received a special permit and zoning variance, for a religious school and residential development [respectively]. We have concluded that development of a residential building with a common facility, [*3]although not legally permissible for the site as currently zoned, would have had a reasonable probability of being achieved by special permit for the school and zoning variance for residential development."

(Appraisal Report at 28).

Claimant further alleges that the Report relies upon the sales comparison approach to determine the market value of the property. In so doing, the Report considers the value of 12 comparable sales, which are then adjusted for market conditions, location characteristics, size, zoning, the need for demolition and rental income. Significantly, adjustments are made for parcels that were zoned M, that were zoned M and received a zoning variance for residential development and for sites that were within a residential zone or a mixed zone that allowed for residential development. The Report also emphasizes that M zoning and industrial uses have become obsolete in the area where the subject property is located and that development plans for the majority of sales within an M zone are currently intended for residential use.

Claimant thus argues that although Fieldstone was apparently under the misimpression that the Congregation was further along in the appeal process than actually was the case, such misunderstanding does not warrant preclusion, since the Report clearly establishes that the valuation is based upon the belief that there was a reasonable probability that residential use could have been achieved within the near future. Moreover, the Appraisal Report contains sufficient facts, figures and calculations; the method of appraisal relied upon; and the conclusions as to the value reached for it to be admissible at trial.

In his affidavit, Fields further alleges that he understood that the Congregation would first apply for a special permit for the construction of the school and that the application for the variance for the residential development would then follow. Fields also alleges that he understood that the Congregation had been informed that the Mayor's Office supported the project and that the Chairperson of the Board of Standards and Appeals viewed the project favorably. In addition, the Site Plan for the special permit depicted both the school and the residential development, so that it appeared that the application already included the residential portion of the development. The Congregation's counsel also opined that claimant had a very strong case for the special permit based on the Board of Standards and Appeals having granting similar applications in the recent past, and that after that approval was obtained, the bar would be lowered for the approval of the variance to build the residential units. Fields also notes that the Congregation had already expended at least $100,000 in connection with the preparation of materials for submission to the Board of Standards and Appeals, combined with his review of the Site Plan. Fields thus argues that inasmuch as neither the approval for the school or for the residential development had been granted as of the date of vesting, the Appraisal Report did not and could not deem either the special permit or the variance to have been granted.

Claimant accordingly concludes that in arguing that the introduction of the Appraisal [*4]Report should be precluded, the City is seeking to pay the Congregation a reduced amount of compensation for the taking of the property by relying upon what amounts to harmless error and ignoring the detailed, well documented analysis and methodology of the Report.

The City's Reply

In its reply, the City argues that its motion should be granted because the Appraisal Report does not "contain facts, figures and calculations that demonstrate that the subject property would have received a variance." More specifically, the City argues that although it requested that it be apprised of the evidence upon which claimant relies in asserting that the property would be granted a variance by letter dated May 16, 2008, claimant did not respond. In this regard, the City further avers that:

"Neither the report not [sic] the opposition papers identifies a single parcel which was nearby to and similar to the subject property, and received a variance for residential development, in order to explain why it could reasonably be inferred that the subject property would receive such a variance too. Equally absent from the report or the motion papers is any discussion of the criteria for a variance set forth in Section 72-71 of the NYC Zoning Resolution."

The City further avers that claimant's references to rezoning of certain parcels in Williamsburg are irrelevant to a question of whether the subject property would have received a variance, since the rezoning of Williamsburg was not meant to eliminate all industrial zoning in the area.

The City then argues that even if it is assumed, arguendo, that the property would probably have received a variance, the methodology used in claimant's Appraisal Report is fatally flawed. More specifically, the Report values that property as if it had received a variance, rather than valuing it as it was zoned on the vesting date and then adding an increment for the probability of obtaining a variance.

Finally, the City argues that in the event that this court finds that claimant should be precluded from introducing its Appraisal Report at trial, claimant should not be allowed to submit an amended report, since it failed to seek such relief in a properly noticed cross motion and it fails to demonstrate good cause for such relief. The City further contends that in the event that the court grants claimant's request, the City should not be liable for any interest between February 12, 2007, the date on which the parties exchanged appraisal reports, and the date on which the City receives a new appraisal report, because claimant's request to amend its report is delaying the resolution of this mater. In addition, the City should not have to pay any interest for this period because the statutory rate of 6% per annum is higher than the prevailing market rate.

Sufficiency of Claimant's Appraisal Report

In the recent case of In re City of New York [Jones Woods Park Addition] (20 Misc 3d 1143(A), 2008 NY Slip Op 51839U, 2008 NY Misc LEXIS 5962, 2008 WL 4193123 [2008]), this court denied a similar motion made by the City, i.e., a motion seeking to [*5]preclude the introduction of an appraisal report at trial on the ground that it was based on the false assumption that claimant had a vested right to develop the subject property in accordance with plans previously approved by the City. For the reasons fully discussed therein, the court finds that claimant's Appraisal Report adequately sets forth the data upon which its valuation is based and sufficiently articulates the basis for the proposed developments that Fieldstone relies upon in valuing the property, as is required by 22 NYCRR 202.61 (id. at 5-6). Thus,"any inadequacies in the appraisal report disclosed during the valuation hearing go to the weight to be given to the report, not its admissibility" (National Fuel Gas Supply v Goodremote, 13 AD3d 1134, 1135 [2004], citing Champlain Natl. Bank v Brignola, 249 AD2d 656, 657 [1998]). Accordingly, claimant will not be precluded from introducing the report at trial.

In so holding, the court emphasizes, as was held in In re City of New York [Jones Woods Park Addition], that "the City points to no rule or case law precedent that requires claimant to lay bare its evidentiary proof in its appraisal report" (In re City of New York [Jones Woods Park Addition], 2008 NY Slip Op 51839U at 6). In this regard, it is further noted that " it is well established that "a condemnation proceeding [is] a special proceeding', not an action', that . . . had been specially created by the Legislature for the condemnation of real property . . .'" (id. at 7, quoting Central Hudson Gas & Electric v Newman, 35 AD2d 989, 990 [1970], quoting Erie R. R. Co. v Steward, 59 AppDiv 187, 188 [1901]). Pursuant to CPLR 408, which controls disclosure in special proceedings, "[l]eave of court shall be required for disclosure except for a notice under section 3123."[FN3] Hence, inasmuch as the City is not entitled to any discovery as of right, it follows that it is not entitled to make a demand for any evidentiary material prior to trial, but for the information provided in the Appraisal Report.

Moreover, as was also discussed in In re City of New York [Jones Woods Park Addition], in arguing that the Congregation should be precluded from introducing the Appraisal Report at trial on the ground that claimant fails to sustain its burden of proving that it used a proper methodology in valuing the property, "the City's motion is more properly characterized as one seeking summary judgment, not one seeking to preclude admission of the [Appraisal] Report" (id. at 7). It is therefore necessary to determine if the City has made a prima facie showing that claimant's method of valuation is improper as a matter of law.

Claimant's Method of Valuation

The Parties' Contentions

In support of its assertion that claimant's Appraisal Report should be precluded as a matter of law, the City argues that claimant fails to establish a value for the property as [*6]zoned, and then add an increment to arrive at its value as developed for residential use. In support of its assertion, the City relies upon Berwick v State (107 AD2d 79 [1985]), in which the court held that:

"The residential value found by this court in its disposition of the constitutional issue may not become the basis for a valuation method which uses those residential values as a beginning point and discounts them because of the uncertainties and expenses of a constitutional challenge. It is the recreational value that is the beginning point to which there must be added the premium which a willing buyer would pay in view of the benefits of a reasonably probable removal of the wetlands' restrictions and the costs and uncertainties of constitutional challenge."

(id. at 94-95). The City also cites Chase Manhattan Bank v State (103 AD2d 211, 217 [1984]), in which the court held that:

"If the claimant proves a reasonable probability of such a rezoning or declaration of invalidity, the value of the property as zoned or restricted on the day of taking will be augmented by an increment, representing the premium a knowledgeable buyer would be willing to pay for a potential change to a more valuable use (Matter of Town of Islip [Mascioli], supra, pp 360-361). At bar, neither the parties nor the court invoked the reasonable probability incremental increase rule."

(id. at 217).

In opposition, claimant argues that its Appraisal Report is properly based upon its assertion that it is reasonably probable that the Congregation would obtain the variance needed for the construction of a school and for residential development; that it is premised upon well accepted principals of law; and that it is adequately supported by facts, calculations and comparable sales, adjusted to reflect differences between the comparable property and the property at issue herein.

The Law

In characterizing the City's motion as one seeking summary judgment, it must be recognized that "[s]ummary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues" (see e.g. Kolivas v Kirchoff, 14 AD3d 493, 493 [2005], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]). A proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Hence, to be entitled to summary judgment, the City has to make a prima facie showing that the subject property may not be valued using the methodology employed by Fieldstone. The City cannot, therefore, sustain its burden by merely pointing to gaps in claimant's proof, arguing that claimant has not met its burden of proof, rather than by affirmatively demonstrating the merit of its claim (see e.g. [*7]In re City of New York [Jones Woods Park Addition], 2008 NY Slip Op 51839U at 8, citing Vittorio v U-Haul Co., 52 AD3d 823 [2008]; Gonzalez v Beacon Term. Assoc., 48 AD3d 518, 519 [2008]; Velasquez v Gomez, 44 AD3d 649, 650-651 [2007]). Further, "[t]he 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" (see e.g. Kolivas, 14 AD3d at 393-394; Doize v Holiday Inn Ronkonkoma, 6 AD3d 573, 573-574 [2004]).

It must also be recognized, as this court has recently held, that:

" As is . . . relevant herein, "[t]he general rule is that when land is taken in eminent domain, its owner is to be compensated for the market value of the property in its highest and best use" (In re County of Suffolk, 47 NY2d 507, 511 [1979], citing Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1 [1978]). "Ordinarily the potential uses the court may consider in determining value are limited to those uses permitted by the zoning regulations at the time of taking" (Matter of Town of Islip [Mascioli], 49 NY2d 354 [1980], citing 4 Nichols, Eminent Domain [3d ed], § 12.322).

" It is equally well settled, however, that "[t]he determination of highest and best use must be based upon evidence of a use which reasonably could or would be made of the property in the near future" (Yaphank Dev. Co., 203 AD2d 280, 281 [1994], citing Matter of City of New York [Broadway Cary], 34 NY2d 535, 536 [1974], reh denied 34 NY2d 916 [1974]; Matter of Consolidated Edison Co. v Neptune Assocs., 190 AD2d 669, 670 [1993]; Zappavigna v State of New York, 186 AD2d 557, 561 [1992]), "regardless of whether the condemnee is so using the property at the time" (627 Smith St. v Bureau of Waste Disposal, 289 AD2d 472, 473 [2001], appeal dismissed 98 NY2d 646 [2002], appeal denied 98 NY2d 611 [2002]; accord County of Suffolk v Firester, 37 NY2d 649, 652 [1975]; In re the Acquisition of Real Property by the County of Clinton, 204 AD2d 898 [1994]). "A use which is no more than a speculative or hypothetical arrangement in the mind of the claimant may not be accepted as the basis for an award" (HBP Assocs. v County of Orange, 277 AD2d 237 [2000]), quoting Matter of City of New York [Shorefront High School-Rudnick], 25 NY2d 146, 149 [1969]; Matter of City of New York [Broadway Cary], 34 NY2d at 536). "[T]he condemnee has the burden of proving the highest and best use of the condemned property" (In re New York, 61 NY2d 843, 845 [1984], citing Matter of City of New York [Franklin Record Center], 59 NY2d 57, 63 [1983]; Heyert v Orange & Rockland Utils., 17 NY2d 352, 362 [1964]; accord IIT Realty v State, 120 AD2d 706 [1986]). As is also of particular relevance herein:

" While it is not essential to demonstrate either that the property had been used as its projected highest and best use or that there had been an ante litem plan for such use (Keator v State of New York, 23 NY2d 337, 339 [1968]), it is, of course, necessary to show that there is a reasonable probability that its asserted use could or would have been made within the reasonably near future (Matter of City of New York [Wilson], 21 AD2d 652, 653 [1964], affd [*8]16 NY2d 814 [1965]).

" (New York v Broadway Cary, 34 NY2d 535, 536).'"

(Matter of City of New York [Jones Woods Park Addition], 2008 NY Slip Op 51839U, 6 -7 [2008], quoting Matter of City of New York [Matter of Newtown Creek Water Pollution Control Plant Upgrade], 18 Misc 3d 1118A, 2008 NY Slip Op 50124U, 23 [2008]).

Further, as is argued by the City, in a condemnation proceeding, it is axiomatic that:

"Ordinarily the potential uses the court may consider in determining value are limited to those uses permitted by the zoning regulations at the time of taking (4 Nichols, Eminent Domain [3d ed], § 12.322). When, however, there is a reasonable probability of rezoning, some adjustment must be made to the value of the property as zoned. An increment should be added to this amount if there is a reasonable probability of rezoning to a less restrictive category (Masten v State of New York, 11 AD2d 370, 371, affd 9 NY2d 796; Genesee Val. Union Trust Co. v State of New York, 9 NY2d 795; cf. Matter of County of Nassau [Cohen], 39 NY2d 574)."

(In re Islip, 49 NY2d 354, 360-361 [1980]). The court recognizes, however, that " "there is no fixed method for determining . . . value [and] . . . [a]ny fair and nondiscriminating method that will achieve that result is acceptable"'" (Matter of Corvetti v Winchell, 51 AD3d 47, 49 [2008], quoting Matter of New Cobleskill Assoc. v Assessors of Town of Cobleskill, 280 AD2d 745,747, [2001], lv denied 96 NY2d 715 [2001], quoting Matter of Allied Corp. v Town of Camillus, 80 NY2d 351, 356 [1992], rearg denied 81 NY2d 784 [1993]). In this regard, it is well settled that reliance upon the traditionally accepted standard of comparable sales of adjacent parcels is a proper means by which to value property in a condemnation proceeding (see e.g. New York v Broadway Cary, 34 NY2d 535, 536 [1974], rearg denied 34 NY2d 916 [1974]; Broadway Assocs. v State, 18 AD3d 687, 688 [2005], lv denied 5 NY3d 710 [2005]).

It must also be recognized "that an increment or discount ascribed to a reasonable probability of a zoning change must have a basis in the evidence [so that if a decision] is without evidentiary basis, the award cannot be sustained" (County of Nassau v Cohen, 39 NY2d 574, 577-578 [1976], citing Matter of City of New York [A. & W. Realty], 1 NY2d 428, 432-433 [1956]; Glennon v State of New York, 40 AD2d 1072 [1972]; South Path Realty v State of New York, 35 AD2d 896 [1970]; Waldenmaier v State of New York, 33 AD2d 75, 76 [1969]; Clearwater v State of New York, 30 AD2d 883 [1968], affd 23 NY2d 1006 [1969]). Further, where a claimant succeeds is establishing that the highest and best use of the property would be different than its present use, claimant must account for the cost of converting the property (see Town of Islip v Sikora, 220 AD2d 434, 435 [1995]; see also Schwartz v State, 72 AD2d 490, 492 [1980] [while the court did not err in considering the reasonable probability that the subject covenant would be waived, the value of the subject property was properly discounted to reflect the fact that removal of the covenant was not an [*9]accomplished fact]).

"Of course, where values are ascertained with reference to truly comparable sites, i.e., those with similar highest and best uses but not yet so developed, there is no need for the use of an increment" (Breitenstein v State, 245 AD2d 837, 839 [1997], citing Marks v State of New York, 152 AD2d 930 [1989]; United Artists Theatre Circuit v State of New York, 53 AD2d 784 [1976]). Similarly, where the narrative explanation provided by a petitioner's appraiser adequately sets forth the particular facts which led him to conclude that two properties were extremely similar, so that only a nominal adjustment was necessary, the valuation set forth in the report will be found to be adequate (see generally Balboaa Land Dev. v Shell, 257 AD2d 790, 792 [1999]).

As is also of particular relevance herein, it has been held that:

"We find no merit to the claimant's contention that the trial court erred in appraising the subject property as a subdivision, rather than as a single lot with potential for subdivision. Condemnation awards are based upon the highest and best use of the property appropriated (see, Keator v State of New York, 23 NY2d 337, 339). The record indicates that having obtained preliminary approval for his subdivision plan, the claimant was all but assured of obtaining final approval. It was therefore reasonably probable that the subject property would or could be used as a residential subdivision in the near future (see, Matter of City of New York [Broadway Cary Corp.], 34 NY2d 535, 536; Matter of City of New York [Shorefront High School - Rudnick], 25 NY2d 146, 148-49)."

(Zappavigna v New York, 186 AD2d 557, 561 [1992]). It has also been held that the:

"assertion that the award . . . was excessive and against the weight of the evidence, because claimant's expert employed an incorrect appraisal methodology and the highest and best use for claimant's property was its existing use and not conversion into office space, is rejected. Claimant's appraisal report was based upon a market data approach. The measure of just compensation for one whose property has been taken in condemnation generally is market value at the time of appropriation, that is, the price a willing buyer would have paid a willing seller for the property' (Matter of Town of Islip [Mascioli], 49 NY2d 354, 360). The appraisal should be based on the highest and best use of the property even though the owner may not have been utilizing the property to its fullest potential when it was taken' ( id., at 360; see, Matter of Town of Esopus, 162 AD2d 829, 830, lv denied 77 NY2d 801). Claimant's appraiser testified that in view of the large-scale redevelopment ongoing in the area, it would be inappropriate to value the property on its current use. He testified that both the income and cost method were inappropriate. He specified and quantified the various adjustments made in his appraisal report, thereby furnishing a sufficient basis for Supreme Court's decision (see, Matter of County of Dutchess [ 285 Mill St.], 186 AD2d 891; see also, Niagara Falls Urban Renewal Agency v 123 Falls Realty, 66 AD2d 1009, 1010, appeal dismissed 46 NY2d 997, lv denied 47 NY2d 711). The sales data approach employed by claimant's appraiser is reasonable in view of the growth and changes brought about by the [*10]redevelopment in the area (see, Matter of County of Dutchess [285 Mill St.], supra)."

(In re Acquisition of Real Property by City of Albany, 199 AD2d 746, 748 [1993]). Thus, a valuation will be upheld if the facts upon which it is based are sufficient to allow the court to discern the manner in which the per-acre value was ultimately determined, specifically as to the use of the required formula of assigning a value to the raw acreage and adding thereto an increment for its potential development; the suitability of the comparable sales relied upon; and the costs associated with obtaining the proposed zoning changes so as to allow the court to make and intelligent review (Breitenstein, 245 AD2d at 839-840).

Finally, "[a]bsent legal error, the suitability of comparable sales is a matter for resolution by the trial court" (Caldor v Board of Assessors, 227 AD2d 400 [1996], citing Matter of Phelps Dodge Indus. v Kondzielaski, 131 AD2d 675, 678 [1987], appeal denied 70 NY2d 613 [1987]).

Discussion

In addressing the City's contentions, the court first notes that two of the cases that the City relies upon, Berwick (107 AD2d 79) and Chase Manhattan Bank (103 AD2d 211), address the issue of the proper valuation of property classified as wetlands pursuant to the New York State Tidal Wetlands Act (Environmental Conservation Law Art 25) that are taken in condemnation, where the claim is made that the wetlands restrictions are, themselves, confiscatory. In addressing the issues raised, the court in Chase Manhattan Bank recognized that "wetlands restrictions are far more stringent than zoning regulations restricting development per se as opposed to restricting types of uses" (Chase Manhattan Bank, 103 AD2d at 214). Accordingly, since the property at issue herein is not restricted by wetlands regulations, the court declines to dispose of the issues raised in reliance upon case law developed to address the more restrictive requirements imposed by the Environmental Conservation Law and will instead be guided by the general principles of law applicable to the condemnation of properties that are not so regulated.

Applying the above principles of law to the facts of this case, the court accordingly concludes that the City fails to sustain its burden of establishing that the valuation of the property, as set forth in claimant's Appraisal Report, is erroneous as a matter of law. Most significantly, the City fails to make a prima facie showing that it was not reasonably probable that the Congregation would obtain the special permit and variance needed to construct a school and residential housing. Further, in opposition to the City's conclusory assertion that the property cannot be valued as posited by claimant, both claimant's appraiser and its Appraisal Report state that an application for a special permit to construct a school was pending and hearings had commenced as of the date of vesting. Although Fields erroneously believed that an application for a variance to construct residential housing had also been filed, his affidavit establishes that site plans for the proposed development had been prepared, claimant had already spent approximately $100,000 in preparing the applications, the City viewed the proposed plans for development favorably and claimant planned and [*11]intended to file for the variance as soon as the special permit was granted.

Moreover, in the valuing the subject property, claimant looked to the value of comparable sales and adjusted those sales to reflect the zoning, land use, need for demolition, etc. Also significant is claimant's assertion that several of the comparable sales were not zoned for residential use, but had obtained the necessary zoning changes to be so developed. Hence, the suitability of claimant's comparable sales and the adjustments made thereto are matters for resolution by the trial court.

Accordingly, the court finds the City's conclusory assertions that claimant will not be able to prove its case at trial and that its comparable sales are not truly comparable are insufficient to support a determination that claimant's method of valuation is erroneous as a matter of law.

Conclusion

For the above discussed reasons, the City's motion is denied in its entirely. Claimant's cross motion to file a corrected appraisal report is accordingly denied as moot.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The City also makes a companion motion seeking to preclude another claimant, 60 Nostrand LLC , from offering its appraisal report at trial on similar grounds. While many of the issues raised in the two motions are identical, so that portions of the two decisions are the same, the court is entering two separate decisions so that the record with regard to each claimant is clear.

Footnote 2: Although captioned an affirmation, Fields' statement is sworn to and notarized under penalties of perjury.

Footnote 3: Although not at issue herein, the court notes that either party is entitled to take a deposition of the other pursuant to entitled to New York City Administrative Code §5-311 (see generally Matter of City of New York [Bushwick Inlet Phase II], 21 Misc 3d 355 [2008]; Matter of City of New York [Jones Woods Park Addition], 2008 NY Slip Op 51839U).