Should You Move for Summary Judgment in a Condemnation Case, or In Limine?

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Michael Rikon[/caption] Courts rarely grant summary judgment motions in a condemnation case. The reason is that the issue of just compensation presents an inherent issue of fact for the court to be determined on the evidence presented which usually is focused on a written appraisal. An appraisal presents a pure factual presentation of data and information utilized by an expert to conclude to an opinion of value. In New York state, an appraisal is required to be exchanged and filed pursuant to Court Rule. 22 NYCRR §202.61. See Miriam Osborn Memorial Home Assoc. v. Assessor of City of Rye, 2004 NY Slip. Op. 50793(U) (West. Cty. Sup. Ct. 2004, Dickerson, J.). Most eminent domain trials have complicated factual issues involving critical determinations that must be made by a court. Not only are there issues of highest and best use of the land, both before and after a partial taking, but there are critical issues involving comparable sales and valuation. Case law emphatically holds that an appraisal is not the substitute for an expert’s direct testimony. The appraisal report is not in itself evidence; its function is to enable adequate and intelligent preparations of the issues for trial and to limit expert testimony at trial. It is not intended as a substitute for evidence. A trial is required to place the appraisal reports and other evidence before the trier of facts to establish the value of the property taken. In re Town of Guilderland, 267 A.D.2d 837 (3d Dep’t 1999) (citing Homer v. State of New York, 36 A.D.2d 333, 335 aff’d 30 N.Y.2d 722 (1972)). The appraisal in and of itself is not designed to take the place of evidence. Currie v. State of New York, 34 A.D.2d 1027 (3d Dep’t 1970). Rather, its function is to supplement the evidence given by the person under whose direction it is prepared. The appraisal should be utilized as a tool which, by adequate examination of its author, helps explain fully to the trial court what the theory of the party introducing the appraisal is so that the trier of the facts is made fully cognizant of what issues are involved in the proceeding. In addition, by delving into the aspects underlying the appraisal, the court will be furnished a record which will permit intelligent appellate review. Homer v. State of New York, 36 A.D.2d 333 (3d Dep’t 1971). A trial court and the Appellate Division as well are bound by the testimony in the record. In re New York (A&W Realty), 1 N.Y.2d 428, 433 (1956). This does not mean, however, that an award may never be higher or lower than the experts’ estimates of value; it is only required that there be evidence at hand to support the value actually found by the court. It is the testimony which is important. See Gerosa v. State of New York, 180 A.D.2d 552 (1st Dep’t 1992). There is no rule or case law precedent that requires a claimant to lay bare its evidentiary proof in its appraisal report. Matter of City of New York (Darlington Avenue), 21 Misc.3d 1128(A) (Sup. Ct. Kings Co. 2008). If a party is denied the opportunity to present the direct testimony of its witnesses and other evidence, there will occur a total violation of due process. The U.S. Supreme Court has held that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims or right and duty through the judicial process must be given a meaningful opportunity to be heard. Boddie v. Connecticut, 401 U.S. 371, 377 (1971). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and should only be employed when there is no doubt as to the absence of triable issues. Kolivas v. Kirchoff, 14 A.D.3d 493, 493 (2d Dep’t 2005) (citing Andre v. Pomeroy, 35 N.Y.2d 361 (1974)). The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. Scott v. Long Island Power Auth., 294 A.D.2d 348 (2d Dep’t 2002). Summary judgment in a condemnation claim has rarely been sustained because of the inherent factual issues presented which require a trial. In Matter of Dormitory Authority of State (Milo Press), 172 A.D.2d 401 (1st Dep’t 1991), the court affirmed the denial of summary judgment in a trade fixture claim dismissing part of the claim. The trial court denied the condemnor’s motion holding that there were triable issues as to compensability. Another example is presented by Town of Cheektowaga v. Starlite Builders, 247 A.D.2d 933 (1998) where the Fourth Department reversed the trial court, which not only granted summary judgment dismissing claimant’s appraisal, but also dismissed the claim at the close of claimant’s case. The court noted that a condemnation is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. A recent decision from the Second Department also confirms the disfavor of granting summary judgment in an eminent domain matter. In Matter of Spring Valley (Sport Club Intl.), 136 A.D.3d 832 (2d Dep’t 2016), the court reversed the grant of summary judgment rejecting its application to a trade fixture claimant holding that at best the language of the lease creates an ambiguity which raises a triable issue of fact. In its purest sense, a motion in limine is an application brought on in the beginning or threshold of a trial which seeks to exclude anticipated prejudicial evidence. In State of New York v. Metz, 241 A.D.2d 192, 198, the First Department stated, “generally, the function of a motion in limine is to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial or prejudicial evidence or limiting its use. Its purpose is to prevent the introduction of such evidence to the trier of fact, in most instances a jury.” The Metz case involved an action brought under the Martin Act alleging securities fraud. In the lower court, the State’s motion for summary judgment based on depositions taken unilaterally was denied and the use of same limited at trial. The Appellate Division reversed, noting the function of an in limine evidentiary ruling and holding that the court should have required defendants to oppose the summary judgment motion. In a condemnation case, where appraisals are generally exchanged long before trial, courts do not readily appreciate trial objections premised on a deficiency of, for example, an alleged violation of court rules. No judge will appreciate a party objecting to an appraisal for some perceived omission which could have been addressed prior to trial. We think this is true in all types of litigation, but especially in condemnation. What sets a condemnation case apart is the fact that an eminent domain proceeding is not a private litigation. The major distinctions between the ordinary civil case and the condemnation claim is the constitutional obligation to pay just compensation to the former property owner. There is a constitutional mandate upon the court to give just and fair compensation for any property taken. Yaphank Development Company v. County of Suffolk, 203 A.D.2d 280 (2d Dep’t 1994) (citing Matter of County of Nassau (County Beach Club), 43 A.D.2d 45, aff’d 39 N.Y.2d 958). The courts have also stated that this means “just” to the claimant and “just” to the people who are required to pay for it. The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly. Since the constitutional mandate is upon the court, it is the court that is responsible to assure that just compensation is awarded. Indeed, if it cannot do so, when for example both sides employ an improper theory of damages, the court must remit for retrial upon proper theory. Frank Micali Cadillac-Oldsmobile v. State of New York, 104 A.D.2d 477 (2d Dep’t 1984). An example of an appropriate in limine motion in a condemnation case is an application to exclude evidence and testimony relating to environmental contamination remediation costs. See Matter of City of New York v. Mobil Oil Corporation, 2005 N.Y. Misc. Lexis 1038 (Gerges, J.) Affirmed 12 AD 3rd 77 (2d Dep’t 2004); see also D’onofrio v. Village of Port Chester, 2005 N.Y. Misc. Lexis 1461 (Dickerson, J.) Another example is the striking of an appraisal based on the cost approach, but the court correctly granted claimant leave to file a new appraisal. Matter of City of New York (Gravesand Branch Library), Index No. 4703/2014, Decision and Order dated Aug. 2, 2017, Kings Co. (Saitta, J.). Michael Rikon is a partner of Goldstein, Rikon, Rikon & Houghton.