Opinion
11434 Index 260551/14
04-30-2020
EAST FORDHAM DE LLC, Plaintiff–Respondent, v. U.S. BANK NATIONAL ASSOCIATION, etc., et al., Defendants–Appellants, KeyBank National Association, Defendant.
Allegaert Berger & Vogel LLP, New York (Alexander H. Shapiro and Partha P. Chattoraj of counsel), for U.S. Bank National Association and Torchlight Loan Services, LLC, appellants. Zeichner Ellman & Krause LLP, New York (Jantra Van Roy of counsel), for Berkadia Commercial Mortgage LLC, appellant. Morrison Cohen LLP, New York (Brett D. Dockwell of counsel), for respondent.
Allegaert Berger & Vogel LLP, New York (Alexander H. Shapiro and Partha P. Chattoraj of counsel), for U.S. Bank National Association and Torchlight Loan Services, LLC, appellants.
Zeichner Ellman & Krause LLP, New York (Jantra Van Roy of counsel), for Berkadia Commercial Mortgage LLC, appellant.
Morrison Cohen LLP, New York (Brett D. Dockwell of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Oing, JJ.
Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered on or about February 19, 2019, which found, after a framed-issue hearing, that plaintiff complied with the directive of the parties' loan modification agreement (LMA) to provide reliable as-stabilized property values so that the minimum net proceeds could be ascertained, unanimously affirmed, with costs.
The plain language of the LMA required that the "as-stabilized value of the Property ... shall be established by the average of two MAI [Member of the Appraisal Institute] appraisals." The appraisers for both parties were MAIs, and both parties' experts agreed that the appraisers provided "as stabilized" values in their direct capitalization and comparable sales analyses. Despite the fact that certain portions of the appraisal reports were labeled "as-is" with respect to valuation, plaintiff's expert explained that the terms "as-is" and "as-stabilized" may be interchangeable when dealing with a multi-tenant commercial property, and Supreme Court did not improvidently exercise its discretion in crediting this testimony ( Rodriguez v. Ford Motor Co., 17 A.D.3d 159, 160, 792 N.Y.S.2d 468 [1st Dept. 2005] ). Contrary to defendants' contention, Supreme Court's reliance on the Dictionary of Real Estate Appraisal was appropriate "to determine the plain and ordinary meaning of words to a contract" ( Lend lease [US] Constr. LMB Inc. v. Zurich Am. Ins. Co., 136 A.D.3d 52, 57, 22 N.Y.S.3d 24 [1st Dept. 2015], affd 28 N.Y.3d 675, 49 N.Y.S.3d 65, 71 N.E.3d 556 [2017] ). Further, the appraisal reports were correctly admitted into evidence, as an expert's "opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, if the hearsay is ‘of a kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on ... trial’ " ( Matter of Chi–Chuan Wang, 162 A.D.3d 447, 449, 78 N.Y.S.3d 329 [1st Dept. 2018] ; see also Matter of New York State Dev. Corp. v. 230 W. 41st St. Assoc. LLC, 77 A.D.3d 479, 480, 908 N.Y.S.2d 685 [1st Dept. 2010], lv denied 16 N.Y.3d 703, 917 N.Y.S.2d 110, 942 N.E.2d 321 [2011] ).