New York State Court of Claims

New York State Court of Claims

CENTER v. THE STATE OF NEW YORK, #2001-027-575, Claim No. 99362, Motion No. M-60954


Synopsis


Rebuttal expert is different from the original appraiser.

Case Information

UID:
2001-027-575
Claimant(s):
STAVAN CENTER, L.P.
Claimant short name:
CENTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99362
Motion number(s):
M-60954
Cross-motion number(s):

Judge:
ALTON R. WALDON, JR.
Claimant's attorney:
Flower and Medalie, Esqs.By: Alan Wasser, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Rose Farrell Lowe, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 this claim.

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 appraiser.

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.

June 28, 2001
New York, New York

HON. ALTON R. WALDON, JR.
Judge of the Court of Claims