MATTER OF WERB v. De Garmo

62 N.Y.2d 636 (1984)

In the Matter of Stanley Werb et al., Appellants, v. Arthur V. De Garmo, as Clay Town Assessor, et al., Respondents.

Court of Appeals of the State of New York.

Decided April 3, 1984.

William L. Allen, Jr., for appellants.

William F. Carrigan, Jr., and Richard D. Ryan for respondents.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

*637MEMORANDUM.

The judgment appealed from and order brought up for review should be affirmed, with costs.

Appellants, owners of a 28-building apartment complex, commenced this tax certiorari proceeding to review the assessments on their property for the tax years 1977-1978, 1978-1979 and 1979-1980. The court relied primarily on the income capitalization method for determining the value of the property. Deducted from annual gross income were amounts representing items of expense, including maintenance. Part of the maintenance expense was a reserve for replacing the items of personalty, such as carpeting and appliances. After determining the capitalized value of the property, the trial court further deducted the depreciated value of the personal property. The Appellate Division modified the judgment, finding that by deducting maintenance expense from annual gross income, the value of the personalty was already excluded from the calculation of fair market value, so that the subsequent subtraction of depreciated value of the personalty resulted in a *638 double deduction. On remittal, the trial court recalculated the assessments in accordance with the findings of the Appellate Division, now before us for review.

No one questions that the value of appellants' personalty should be excluded from the ad valorem tax in issue (Real Property Tax Law, § 300). The only issue raised is whether this result was accomplished upon deduction of the maintenance reserve. The findings of fact made by the Appellate Division as to the value of appellants' real property more closely comport with the weight of the evidence than the findings of the trial court, and we therefore affirm. (See Matter of Marine Midland Props. Corp. v Srogi, 60 N.Y.2d 885, 887.) While neither calculation may perfectly achieve the objective, by permitting deduction of both the maintenance reserve and the depreciated value, appellants would in effect be credited with more than the value of the personalty.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.