PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIN THE MATTER OF RITE AID CORPORATION PETITIONER-APPELLANT, v. RHONDA DARLING, ASSESSOR, AND BOARD OF ASSESSMENTREVIEW OF CITY OF CORNING, CITY OF CORNING RESPONDENTS-RESPONDENTS AND CORNING-PAINTED POST AREA SCHOOL DISTRICT INTERVENOR-RESPONDENT.(PROCEEDING NOS. 1-6.)JACOBSON LAW FIRM, P.C., PITTSFORD (ROBERT L. JACOBSON OF COUNSEL) FOR PETITIONER-APPELLANT.BARLCAY DAMON, LLP, ROCHESTER (MICHAEL E. NICHOLSON OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.Appeal from an order of the Supreme Court, Steuben County (JosephW. Latham, A.J.), entered August 25, 2016 in proceedings pursuant toRPTL article 7. The order, among other things, granted in part thejoint motion of respondent City of Corning and intervenor-respondentfor summary judgment.It is hereby ORDERED that the order so appealed from isunanimously modified on the law by denying the motion of respondentCity of Corning and intervenor-respondent in its entirety, vacatingthe first, and third through fifth ordering paragraphs, reinstatingthe petitions with respect to tax years beginning in 2009, 2010 and2011, and reinstating the note of issue in each proceeding, and asmodified the order is affirmed without costs.Memorandum: Petitioner commenced these RPTL article 7proceedings seeking review of the real property tax assessments for acommercial property located in respondent City of Corning (City) forthe tax years 2009 through 2014. Following this Court’s decisions inMatter of Rite Aid Corp. v. Haywood (130 AD3d 1510 [4th Dept 2015], lv. denied 26 NY3d 915 [2016], rearg denied 27 NY3d 976 [2016], certdenied — US —, 137 S Ct 174 [2016]) and Matter of Rite Aid Corp. v. Huseby ([appeal No. 2] 130 AD3d 1518 [4th Dept 2015], lv denied 26 – NY3d 916 [2016], rearg denied 27 NY3d 977 [2016], cert denied — US — 137 S Ct 174 [2016]), the City and intervenor-respondent, Corning-Painted Post Area School District (respondents), jointly moved forsummary judgment dismissing the petitions on the ground that Haywood and Huseby rendered the appraisal report and opinions of petitioner’sexpert unreliable and invalid as a matter of law. Petitioner crossmovedpursuant to 22 NYCRR 202.59 (h) for leave to amend its appraisalreport. Supreme Court granted the motion in part, dismissed thepetitions with respect to the 2009-2011 tax years, denied those partsof the cross motion seeking leave to amend the appraisal report forthe 2009-2011 tax years, and granted those parts of the cross motionseeking leave to amend the appraisal report for the remaining taxyears. The court also struck, sua sponte, the notes of issue in allsix proceedings, deemed the proceedings for the 2009-2011 tax years tobe abandoned pursuant to RPTL 718 (2) (d), and ordered that theproceedings for the 2012-2014 tax years be placed on the court’s trialcalendar after new notes of issue were filed no later than February28, 2017. Petitioner appeals.Initially, we agree with petitioner that the court erred ingranting those parts of the motion seeking summary judgment dismissingthe petitions with respect to the 2009-2011 tax years, and wetherefore modify the order accordingly. Our decisions in Haywood andHuseby were rendered in an entirely different procedural context thanthat presented here. In both Haywood and Huseby, we conducted weightof the evidence review of verdicts rendered after nonjury trials i.e., we considered whether the trial court ” ‘failed to giveconflicting evidence the relative weight which it should have’ “(People ex rel. MacCracken v. Miller, 291 NY 55, 61 [1943] [emphasisomitted]), while giving due deference to the trial court’s power toresolve credibility issues by choosing among conflicting expertopinions (see Matter of Brooks Drugs, Inc. v. Board of Assessors OF City of Schenectady, 51 AD3d 1094, 1095 [3d Dept 2008], lv denied 11 – NY3d 710 [2008]). In both decisions, we concluded that the failure OF petitioner’s expert to utilize a recent sale of the subject property as well as readily available comparable sales of national chaindrugstore properties in the applicable submarket, and the contractrent as evidence of value, resulted in valuation conclusions of theexpert’s appraisal that were unreliable with respect to the weight, ifany, to be given to those conclusions. We thus concluded in bothHaywood and Huseby that the trial court’s determinations to credit theappraisal of petitioner’s expert over that of the respondents’ expertwere against the weight of the evidence. Here, however, the court waspresented with a motion for summary judgment, and the issue before thecourt was therefore whether respondents made “a prima facie showing OF entitlement to judgment as a matter of law, tendering evidence todemonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Thus, there is asignificant and dispositive difference between this case and theprocedural context in Haywood and Huseby.We further conclude that respondents failed to establish theirentitlement to judgment as a matter of law (see generally Alvarez, 68 – NY2d at 324). We agree with petitioner that the appraisal reportprepared by its expert is not deficient as a matter of law inasmuch asit sets forth substantial evidence that the property was overvalued bythe taxing authority to rebut the presumption of validity of the taxassessments in each proceeding (see generally Matter of Techniplex III-3- 1529 – CA 17-01227 v. Town & Vil. of E. Rochester, 125 AD3d 1412, 1412-1413 [4th Dept2015]). A primary objective of the exchange and filing of appraisalreports prior to trial is “to afford ‘opposing counsel the opportunityto effectively prepare for cross-examination’ ” (Matter of Board OF Mgrs. of French Oaks Condominium v. Town of Amherst, 23 NY3d 168, 176[2014]), and the appraisal of petitioner’s expert serves that purpose.Moreover, “[d]eficiencies in an appraisal report may be cured by theexpert’s trial testimony” (Matter of Gibson v. Gleason, 20 AD3d 623 625 [3d Dept 2005], lv denied 5 NY3d 713 [2005]), and “the trial courtenjoys broad discretion in that it can reject expert testimony andarrive at a determination of value that is either within the range OF expert testimony or supported by other evidence and adequatelyexplained by the court” (ARC Machining & Plating v. Dimmick, 238 AD2d849, 850 [3d Dept 1997]; see Wagner v. State of New York, 25 AD2d 814 814 [4th Dept 1966]).In light of our determination that the court erred in grantingthose parts of the motion seeking summary judgment dismissing thepetitions with respect to the 2009-2011 tax years, we conclude thatthere is no basis for striking the notes of issue in thoseproceedings. We further conclude that the court abused its discretionin sua sponte striking the notes of issue in the proceedings for the2012-2014 tax years (see 22 NYCRR 202.21 [e]; see generally Marks v. Morrison, 275 AD2d 1027, 1027 [4th Dept 2000]). We therefore furthermodify the order by reinstating the note of issue in each proceeding.As a result, we also conclude that the court erred in determiningpursuant to RPTL 718 (2) (d) that the proceedings for the 2009-2011tax years had been abandoned.We reject petitioner’s further contention that the court abusedits discretion in denying its cross motion to amend its appraisal withrespect to the 2009-2011 tax years pursuant to 22 NYCRR 202.59 (h).Petitioner’s remaining contentions are raised for the first timeon appeal and thus are not properly before us (see Ciesinski v. Town OF Aurora, 202 AD2d 984, 985 [4th Dept 1994]).Entered: June 8, 2018 Mark W. BennettClerk of the CourtSUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Fourth Judicial Department
