The following papers were reviewed by the court on this motion: Claimant's
Notice of Motion, Claimant's Affirmation and annexed Exhibit A, Defendant's
Affirmation in Response, Filed Appraisals, Filed Rebuttal Report and Filed
Claim. Claimant, Stavan Center, L.P.(Stavan), is seeking, herein, an Order
from this Court striking or excluding from evidence the document filed by
defendant, the State of New York, entitled "Rebuttal Report" and precluding the
author of that document from giving expert opinion testimony upon the trial of
The underlying appropriation action involves the taking by defendant of a
certain portion of land from claimant which was part of a shopping center that
bordered on Jericho Turnpike in Woodbury, Town of Oyster Bay, Nassau County, New
York. Defendant filed an appraisal report with the Court of Claims on September
28, 1999 and claimant filed its appraisal report on October 7, 1999.
Subsequently, defendant filed a rebuttal report on November 16, 1999.
Claimant objects to the use of the rebuttal report on several grounds.
Specifically, claimant states that the rebuttal report is not an expert report
at all and is in fact nothing more than a critique of claimant's appraisal
report. Claimant goes on to allege that the rebuttal report does not contain any
affirmative expert opinion based on some new matter raised in claimant's
appraisal report which was not previously addressed by defendant's appraiser.
In essence claimant is asserting that the filing of the rebuttal report is an
attempt by defendant to thwart the procedural system by which appropriation
claims are considered and determined by the Court.
Initially, claimant points out that the rebuttal report was not prepared by
the same appraiser as the one which prepared defendant's trial appraisal.
Claimant alleges that this is essentially an attempt to have a second appraisal
before the Court for consideration. He states that this second expert will have
free reign at trial to assert whatever he wishes and would not be bound by the
parameters of defendant's first appraisal. Thus, in effect, the second expert
would be allowed to circumvent the Uniform Rules of the Court of Claims §
206.21(h) which requires that an expert witness be limited in his testimony to
matters set forth his respective report.
Significantly, claimant finds fault with the fact that the opinions contained
within the rebuttal report were compiled with the benefit of seeing claimant's
appraisal. Claimant asserts that this constitutes a violation of rules
requiring the simultaneous filing and exchange of appraisals. Claimant concedes
that defendant's first appraisal report was prepared by an appraiser who had not
seen claimant's appraisal report. In sum, claimant puts forth the proposition
that a critique of claimant's appraisal prepared by a new appraiser does not
constitute an expert opinion in rebuttal to that report. Claimant gives
examples of various types of rebuttal reports it would deem appropriate. They
include an opinion by the expert who had already filed a report as to an issue
treated by the opposing expert but which he could not anticipate when he
prepared his own report. Claimant would also accept without objection a
rebuttal report by an expert, other than an appraiser, such as an engineer or
zoning expert. Additionally, it is claimant's assertion that the mere fact that
the rebuttal report was filed by a new appraiser renders it in violation of the
rules of the Court.
Defendant asserts that the rebuttal report submitted on its behalf is simply
an expert rebuttal report rebutting the allegations and statements made by
claimant's appraiser and that it is, in fact, not a second valuation report as
claimant would have the Court find. Defendant filed its rebuttal report,
inter alia, to point out the deviations from the Uniform Standards of
Professional Appraisal Practice(USPAP) allegedly contained within claimant's
appraisal report. If true, these departures could not have been anticipated by
defendant's appraiser. Claimant concedes essentially that he would have
accepted such a report had it been written by defendant's original
Initially, the Court notes that §206.21(f), which governs rebuttal
reports, does not limit rebuttal reports to only certain reports but allows for
a party to offer expert evidence in rebuttal to any report. There is
also no requirement contained within §206.21 which states that a rebuttal
report to a valuation appraisal must be filed by the same expert who filed the
original valuation report. Consequently, defendant was well within its rights
to file the rebuttal report which is the subject of this motion.
Therefore, for the foregoing reasons, claimant's motion is denied.