| Matter of Eckerd Corp. v Semon |
| 2007 NY Slip Op 07977 [44 AD3d 1232] |
| October 25, 2007 |
| Appellate Division, Third Department |
| In the Matter of Eckerd Corporation, Respondent, v Chris Semon,as Assessor of the Town of Colonie, et al., Appellants, et al., Respondent. (And Another RelatedProceeding.) |
—[*1] Robert L. Jacobson, Pittsford, for Eckerd Corporation, respondent.
Spain, J. Appeals (1) from an order and judgment of the Supreme Court (Teresi, J.), enteredSeptember 29, 2006 in Albany County, which, among other things, granted petitioner'sapplications, in two proceedings pursuant to RPTL article 7, to reduce tax assessments on certainreal property leased by petitioner, and (2) from an order of said court, entered November 6, 2006in Albany County, which denied certain respondents' motion to vacate a prior order and judgmentof the court.
The subject of these RPTL article 7 proceedings is an approximately five-acre parcel ofproperty located at the corner of Albany Shaker Road and Osborne Road in the Town of Colonie,Albany County, improved by a freestanding Eckerd retail drug store with a drive-throughwindow and a parking lot. The property was assessed by the Town of Colonie at $2,300,000 forboth 2004 and 2005. Petitioner commenced these proceedings challenging those assessments.Following a nonjury trial in Supreme Court (Spargo, J.), the case was reassigned and the court(Teresi, J.)—on the parties' consent to issue a decision—adopted petitioner'sproposed findings of fact and conclusions of law and assessed the property, in conformity withpetitioner's appraiser's report, at $1,860,000 for 2004 and $1,870,000 for 2005.
Prior to entry of judgment, respondents Town Assessor and Board of Assessment Review(hereinafter collectively referred to as respondents) moved, pursuant to CPLR 4404 (b), to vacateSupreme Court's order and judgment as inconsistent with the court's decision in a separate RPTLarticle 7 proceeding involving another of petitioner's drug stores located in the City of Watervliet,Albany County (hereinafter the Watervliet proceeding) (see Matter of Eckerd Corp. vGilchrist, 44 AD3d 1239 [2007] [decided herewith]). The courtdenied respondents' motion, finding that the proceedings were sufficiently distinguishable towarrant differing results. Respondents appeal from the order and judgment, as well as the orderdenying the motion to vacate.
Initially, we find that petitioner came forward with substantial evidence to rebut thepresumption of validity attached to respondents' assessment in the form of a detailed appraisalconducted by Chris Harland, a certified appraiser, which utilized the three generally acceptedmethodologies for valuation—the sales comparison approach, the income capitalizationapproach and the cost approach—and concluded that the property was over-assessed(see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 187-189[1998]; Matter of Eckerd Corp. vSemon, 35 AD3d 931, 932 [2006]). The presumption being thereby rebutted, it was therole of Supreme Court to " 'weigh the entire record, including evidence of claimed deficiencies inthe assessment, to determine whether petitioner has established by a preponderance of theevidence that [the subject] property has been overvalued' " (Matter of Gibson v Gleason, 20 AD3d 623, 626 [2005], lvdenied 5 NY3d 713 [2005], quoting Matter of FMC Corp. [Peroxygen Chems. Div.] vUnmack, 92 NY2d at 188). On appeal, we will give " 'due deference to Supreme Court'spower to resolve credibility issues by choosing among conflicting expert opinions' " and will notset aside its findings unless they are not supported by the weight of the evidence (Matter ofGolub Corporation/Price Chopper Operating Co. v Assessor of Town of Queensbury, 282AD2d 962, 962 [2001], quoting Robinson Saw Mill Works v Speilman, 265 AD2d 604,607 [1999]; see Matter of Eckerd Corp. v Semon, 35 AD3d at 932).
We conclude that Supreme Court's determination that the tax assessment was excessive isnot against the weight of the record evidence. Harland and respondents' appraiser, David Bizik,emphasized the same methodologies for valuing the property—i.e., the sales comparisonand income capitalization approaches—but reached very different conclusions becausethey relied upon very different comparable sales and leases.[FN*] Whereas Bizik relied exclusively on national retail drug store comparables, Harland utilizedother types of retail properties, purposely excluding national retail drug stores because, accordingto Harland, they are "build-to-suit" properties: that is, they are subject to above-market leaseswhich encompass purchasing, often at a premium, and assembling various pieces of property,demolition and construction costs. Based on facts similar to the case at hand, we previously haveheld that Harland's reasons for rejecting so-called build-to-suit comparables to be plausible and,thus, upheld Supreme Court's decision to rely on his report (see Matter of Eckerd Corp. vSemon, 35 AD2d at 934).[*2]
We are unpersuaded by respondents' contention thatSupreme Court's decision must nevertheless be reversed because it is inconsistent with thedecision in the Watervliet proceeding. On the record before us, the proceedings are sufficientlydifferent to render any alleged inconsistency irrelevant.
We do find merit, however, in respondents' contention that the valuation of the vacantportion of the subject property at zero is speculative. Only 2.47 of the 5.07 acres of the propertyare improved; the remainder of the land is undeveloped. Harland assigned no value to the vacantportion of the land, finding it to be an irregular shape, landlocked and, thus, not marketable.Thus, although he employed a per acre land value for the area at $270,000, he only assessedpetitioner's property as 2.47 acres, ignoring the remainder of the parcel. In contrast, Biziktestified that the location of the vacant land in a thriving business area necessarily gave it value,despite the parcel's shape and the need to access it via an easement. He valued the undevelopedland at $200,000, based upon comparable sales, including a rear parcel sold to an adjoininglandowner in the Town of Colonie and a highly irregular-shaped parcel sold to an electric utilityin Latham, Albany County. Given this competent evidence of value and petitioner's failure tosupport its position that the undeveloped land had no value, we adopt respondents' appraisalanalysis and increase the assessments by $200,000 for both 2004 and 2005.
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur. Ordered that the order andjudgment is modified, on the law and the facts, without costs, by increasing petitioner's taxassessment for the 2004 and 2005 tax years by $200,000 each, and, as so modified, affirmed.Ordered that the order entered November 6, 2006 is affirmed, without costs.
Footnote *: Bizik valued the property at$3,750,000 for 2004 and $3,900,000 for 2005.