Opinion
May 20, 1965
Appeal from the Monroe County Court.
Present: Williams, P.J., Bastow, Goldman, Noonan and Del Vecchio, JJ.
Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The determination of the value of the premises was against the weight of evidence. Although the court could consider the so-called "Neisner" lease in fixing value, it was error on the facts in this case to rely on the highly speculative capitalization of net rental income particularly the factor of estimated gross sales ( Levin v. State of New York, 13 N.Y.2d 87). In view of the fact that this proceeding was limited by the original motion and the proof offered to a determination of the value of the mortgaged premises as bearing on the plaintiff's right to a deficiency judgment, we do not reach or pass upon the last ordering paragraph of the order dated April 26, 1963 which vacates an earlier order with respect to certain proceeds from an appropriation award. A new trial should be had on the issue of the value of the property.