Nunes v. State

¶1I am unable to agree with the result reached by the majority and therefore dissent. The critical basis for the majority’s conclusion is their reliance on the Pomeroy appraisal. Concededly, this appraisal was not received in evidence nor considered by the court. Significantly, claimants’ attorney, in referring to this appraisal at the conclusion of the trial stated, in substance, that he was not offering it in evidence, but rather offering a figure contained therein as an admission against interest. Consequently, in my view, the court properly did not consider the Pomeroy appraisal. The majority’s reliance on Matter of County of Nassau v State Bd. of Equalization & Assessment (91 AD2d 53) for authority to consider the appraisal is misplaced since the Nassau case is clearly factually distinguishable from the instant case. In Nassau, Special Term had remitted the matter to the State Board of Equalization and Assessment to develop a proper record for review. In other words, the court did not think there was a proper record to permit review. Furthermore, the additional evidence considered by this court would have been submitted in any event upon remittal. Such is not the situation here where the case comes to this court after trial on a record developed by experienced attorneys and a record which is sufficient for review. To permit claimant to supplement the record after trial with additional proof as the result of an afterthought, based on the authority of Nassau, can only lead to mischievous results. While the record at the conclusion of the trial lacked a range of value since the experts differed on the highest and best use of the property, the court did, from my examination of the record, sufficiently explain the reasons for its conclusions concerning value and such are supported by the evidence (Darro v State of New York, 44 AD2d 625). Consequently, there should be an affirmance.