Matter of Bertelsmann Prop. Inc. v Tax Commn.

Matter of Bertelsmann Prop. Inc. v Tax Commn. 2009 NY Slip Op 07317 [66 AD3d 492] October 13, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

In the Matter of Bertelsmann Property Inc., Respondent-Appellant,
v
Tax Commission et al., Appellants-Respondents.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Barbara Moretti of counsel), for appellants-respondents.

Herman Katz Cangemi & Clyne, LLP, Garden City (Jay M. Herman of counsel), for respondent-appellant.

Order and judgment (one paper), Supreme Court, New York County (Edward Lehner, J.), entered June 9, 2008, after a nonjury trial, inter alia, reducing the assessed valuation of the office condominium portion of the subject property for the tax years from 1995/1996 through 1999/2000 and 2003/2004, unanimously affirmed, without costs.

The record supports the court's determination to reject the figure for rentable square footage set forth in the parties' 1992 agreement, which petitioner's expert criticized as inadequately supported and other competent evidence contradicted. The court appropriately accepted the architect's uncontroverted testimony as to usable square footage and adopted a reasonable "add-on factor" calculating rentable square footage. In urging an upward modification of the rentable square footage figure, respondents rely on inapposite legal doctrines, such as equitable estoppel, which in any event they raise for the first time on appeal.

In urging a further reduction in assessed value based on tenant concessions and similar allowances, petitioner contends that its method for fixing such expenses accurately reflects the market. However, the record supports the court's resolution of conflicting expert opinion on this issue. Moreover, the record demonstrates that the court did not adopt the method used by respondents' expert wholesale but reviewed the evidence and reached an independent conclusion. Concur—Saxe, J.P., Nardelli, Buckley, Acosta and Freedman, JJ.