Opinion
12-15-2016
ARS INVESTORS II HVB, LLC, Plaintiff–Respondent, v. BLACKMEADOW ROAD LLC, et al., Defendants–Appellants.
Becker & Poliakoff, New York (James J. Mahon of counsel), for appellants. Norris McLaughlin & Marcus, P.A., New York (Melissa A. Pe~na of counsel), for respondent.
Becker & Poliakoff, New York (James J. Mahon of counsel), for appellants.
Norris McLaughlin & Marcus, P.A., New York (Melissa A. Pe~na of counsel), for respondent.
Deficiency judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered August 14, 2015, confirming and ratifying a referee's report of the sale of the mortgaged premises, dated March 19, 2014, and awarding plaintiff a sum of money, unanimously affirmed, with costs.
Plaintiff established prima facie through its expert's appraisal “the fair and reasonable market value of the mortgaged premises” (RPAPL 1371[2] ; see White Knight NYC Ventures, LLC v. 15 W. 17th St., LLC, 110 A.D.3d 576, 973 N.Y.S.2d 208 [1st Dept.2013] ). Defendants failed to establish that the highest and best use of the property was something other than the existing use, on which plaintiff's expert based his appraisal (see National Bank of N. Am. v. Systems Home Improvement, 69 A.D.2d 557, 562–563, 419 N.Y.S.2d 606 [2d Dept.1979], affd. 50 N.Y.2d 814, 430 N.Y.S.2d 49, 407 N.E.2d 1345 [1980] ; BTC Mtge. Invs. Trust 1997–SI v. Altamont Farms, 284 A.D.2d 849, 727 N.Y.S.2d 513 [3d Dept.2001] ). Defendants' expert did not show that it was “reasonably probable that the asserted highest and best use could or would have been made of the subject property in the near future” (see National Bank of N. Am., 69 A.D.2d at 563, 419 N.Y.S.2d 606 ). The trial court appropriately rejected defendants' expert's testimony as being speculative and devoid of factual foundation support (see BTC Mtge. Invs. Trust 1997–SI, at 850, 727 N.Y.S.2d 513 ).
MAZZARELLI, J.P., ANDRIAS, SAXE, FEINMAN, GISCHE, JJ., concur.