| St. Lawrence Factory Stores v Ogdensburg Bridge & PortAuth. |
| 2008 NY Slip Op 02537 [49 AD3d 1069] |
| March 20, 2008 |
| Appellate Division, Third Department |
| St. Lawrence Factory Stores, Appellant, v Ogdensburg Bridge andPort Authority, Respondent. |
—[*1] Harter, Secrest & Emery, L.L.P., Rochester (A. Paul Britton of counsel), forrespondent.
Peters, J. Appeal from a judgment of the Supreme Court (Rogers, J.), entered November 8,2006 in St. Lawrence County, upon a decision of the court in favor of plaintiff.
In 1990, plaintiff and defendant entered into a sale option contract giving plaintiff the optionto buy a parcel of undeveloped real property in the City of Ogdensburg, St. Lawrence County, forthe purpose of constructing a retail factory outlet. When defendant refused to close on theproperty, plaintiff commenced this action seeking damages based on lost profits, reliance andbenefit of the bargain. In 1992, defendant was granted summary judgment by Supreme Court(Duskas, J.), but this Court reversed (202 AD2d 844 [1994]). After a lengthy period of discovery,defendant again moved for summary judgment, which was partially granted by Supreme Court(Rogers, J.). On appeal, this Court affirmed, rejecting plaintiff's claims for lost profits andreliance damages, but finding issues of fact with regard to breach and benefit of the bargaindamages (26 AD3d 700, 702 [2006]). After a subsequent bench trial, Supreme Court found thatdefendant had breached the parties' contract in bad faith, but that plaintiff had failed todemonstrate damages under the benefit of the bargain theory and, thus, awarded no damages.This appeal by plaintiff ensued.
Plaintiff first contends that, based upon a theory of judicial estoppel, Supreme Court [*2]erred in not awarding benefit of the bargain damages inasmuch asdefendant conceded that the value of the subject property substantially exceeded the purchaseprice in a previous memorandum of law submitted during this litigation. Defendant correctlycontends, however, that as plaintiff raised this issue when this matter was last before us (26AD3d at 702), plaintiff is foreclosed from making such argument here under the doctrine of lawof the case (see People v Evans, 94 NY2d 499, 502 [2000]; Martin v City ofCohoes, 37 NY2d 162, 165 [1975]; Solomon v Solomon, 14 AD3d 990, 991 [2005]).
Alternatively, plaintiff contends that, notwithstanding defendant's admission, its expertprovided the only competent evidence with regard to the market value of the property at the timeof breach and, thus, Supreme Court erred in disregarding said opinion. The best indication of themarket value of real property, unless explained away as abnormal, is a recent, "arm's length"transaction (see W.T. Grant Co. v Srogi, 52 NY2d 496, 510-511 [1981]; Matter of Eckerd Corp. v Gilchrist, 44AD3d 1239, 1240 [2007]; Matter of Ulster Bus. Complex v Town of Ulster, 293AD2d 936, 939 [2002]). Thus, one looks to recent sales of comparable properties which are "'sufficiently similar to serve as a guide to the market . . . notwithstanding [their]differences' " (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179,189 [1998], quoting Matter of General Elec. Co. v Town of Salina, 69 NY2d 730, 732[1986]).
John Havemeyer, plaintiff's expert appraiser, provided testimony and submitted twoappraisals he had performed in May and December 1991. Eschewing the sale price of $293,750contained in the parties' option contract, Havemeyer appraised the property at approximately$800,000 based on an analysis of selected comparable sales. However, while attempting to valuethe 12-acre subject parcel as of December 1991, Havemeyer's appraisal used approximately a halfdozen comparable sales, none of which occurred after 1987, all of which were two acres or lessand most of which were in a different municipality than the subject property. Significantly,during cross-examination, Havemeyer conceded that many of the "comparables" he used were, infact, not comparable in size or functional utility. Moreover, Havemeyer also admitted that he hadnot considered several other parcel sales that were executed more recently and for larger acreage,including a land sale for the construction of Gateway Plaza, a retail shopping center within onemile of the subject property, that Havemeyer mentioned in his appraisal by name. Further erodingHavemeyer's credibility at trial were frequent admissions that he could not remember whatinvestigation he engaged in when preparing his appraisals and why he rejected certain seeminglycomparable sales. As such, Supreme Court's decision not to credit plaintiff's expert and to rely onthe option contract price as the true value of the subject property represented a fair andreasonable interpretation of the evidence and, therefore, we decline to disturb its decision (see Beckwith v State of New York, 42AD3d 828, 829 [2007]; Butler v New York State Olympic Regional Dev. Auth., 307AD2d 694, 695 [2003]).
Nor did Supreme Court err when it failed to award damages that plaintiff purportedlyincurred in reliance upon the option contract and its coordinate obligation to develop a retailfactory outlet. Inasmuch as the identical argument was advanced during the course of plaintiff'slast appeal, and was specifically rejected by this Court (26 AD3d at 702), it is similarly precludedby the law of the case doctrine (see People v Evans, 94 NY2d at 502; Martin v City ofCohoes, 37 NY2d at 165; Solomon v Solomon, 14 AD3d at 991).
Cardona, P.J., Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, with costs.