Indeed, those increased rents would be subject to market forces; whereas, the JHO relied on legally mandated increases. In stating its position that it was inappropriate to disregard the cost to cure based on a potential increase in rental income, petitioner cites to In Re Bass v. Tax Commission of the City of NY, 179 AD2d 387 (1st Dept 1992). However, there, unlike the present case, it was noted that the trial judge specifically found "significant physical and functional impairments," and that decrepitude caused clearly by asbestos, absolutely required removal, thus decreasing that building's value.

In an RPTL article 7 proceeding, a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority ( see Matter of FMC Corp. [Peroxygen Chems. Div.] v. Unmack, 92 N.Y.2d 179, 188, 677 N.Y.S.2d 269, 699 N.E.2d 893 [1998] ).Thus, a petitioner challenging the accuracy of a tax valuation has the initial burden to rebut the presumption by introducing substantial evidence that the property was overvalued (see Matter of Bass v. Tax Commn. of City of N.Y., 179 A.D.2d 387, 387, 578 N.Y.S.2d 158 [1st Dept.1992][“The presumption of validity of an assessment by the taxing authority is rebutted where, as here, credible evidence to the contrary is received”]; Matter of FMC Corp., 92 N.Y.2d at 188, 677 N.Y.S.2d 269, 699 N.E.2d 893[a “petitioner (must) demonstrate the existence of a valid and credible dispute regarding valuation”]

ion of Commerce's property was accomplished by the use of the income capitalization approach to determine the value in an uncontaminated state of this income-producing property, combined with a downward environmental adjustment in the amount of outstanding cleanup costs. While cognizant of the potential of this valuation method to overstate the effects of environmental contamination, we nevertheless conclude that cleanup costs are an acceptable, if imperfect, surrogate to quantify environmental damage and provide a sound measure of the reduced amount a buyer would be willing to pay for the contaminated property ( see, Westling v County of Mille Lacs, 543 N.W.2d 91 [Minn] [affirming assessment where value of property reduced by remaining cleanup costs and amount attributable to stigma]; Wilson, op. cit., at 413; cf., Matter of Northville Indus. Corp. v Board of Assessors, 143 A.D.2d 135, 138, supra [deducting total cost of compliance with Sanitary Code from each annual tax assessment]; Matter of Bass v Tax Commn., 179 A.D.2d 387, 388 [affirming deduction for "foreseeable cost of curing the building's deficiencies," including asbestos contamination]). The use of this method would be disfavored, for example, when the property is capable of productive use, but the high cleanup costs yield a negative property value.

Decided June 4, 1992 Appeal from (1st Dept: 179 A.D.2d 387) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED

Before: Gonzalez, P.J., Friedman, Moskowitz and Renwick, JJ. The assessed valuations confirmed by the court were within the range of the trial evidence ( see Matter of Bass v Tax Commn. of City of N.Y., 179 AD2d 387, 388, lv denied 80 NY2d 751). The court's determination that the actual rents for the unsold condominium apartments, which both parties' expert appraisers agreed were below market rents, were an inappropriate component of valuation of the property was not against the weight of the evidence or contrary to law ( see Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538, 543). Nor is there any basis to disturb the court's factual findings with respect to income, expenses and capitalization rates.

Before: Mazzarelli, J.P., Sullivan, Buckley, Sweeny and Catterson, JJ. Petitioner failed to submit credible evidence sufficient to rebut the presumption of validity that attaches to an assessment by a taxing authority ( see Matter of Bass v Tax Commn. of City of N.Y., 179 AD2d 387, lv denied 80 NY2d 751). We perceive no ground to disturb the hearing officer's finding that petitioner was not entitled to a decrease in the value of the building because the building required new windows and plumbing, since the costs of replacing the windows and plumbing, i.e., major capital improvements, could be readily recouped through rent increases ( see Matter of Ansonia Residents Assn. v New York State Div. of Hous. Community Renewal, 75 NY2d 206).

While the income capitalization approach has generally been regarded as the preferred method for determining the value of the type of income-producing property involved herein ( see, 41 Kew Gardens Rd. Assocs. v Tyburski, 70 NY2d 325, 331), it need not be the exclusive method ( see, Hudson City Sav. Inst, v Drazen, 153 AD2d 91). Thus, the court could properly accept the sales comparison or market value analyses included in bothexperts' appraisal reports, and thereby arrive at a value which emphasized a pragmatic adjustment to the economic realities of the premises involved herein ( see, Matter of Bass v Tax Commn., 179 AD2d 387). Furthermore, the court's determination that the value of the premises exceeded the $1,315,033.

Under New York law, the value at which real property may be taxed has been equated with market value, which is "`the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell'" (Grant Co. v. Srogi, 52 N.Y.2d 496, 510). The petitioner's parcel had been designated by the Environmental Protection Agency as a "Superfund" cleanup site under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (hereinafter CERCLA) ( 42 U.S.C. § 9601 et seq.). Contrary to the appellants' contentions, the Supreme Court properly determined the market value of the property by deducting the full outstanding cost of the petitioner's compliance with CERCLA from the total assessment for each of the tax years under review (see, Matter of Bass v. Tax Commn., 179 A.D.2d 387; Matter of Northville Indus. Corp. v. Board of Assessors, 143 A.D.2d 135). We note that the appellants' assertions concerning the petitioner's expert's treatment of the sewer tax for purposes of valuation are not properly before this Court, having been raised for the first time in the appellants' reply brief (see, DeMeo v New York City Tr. Auth., 174 A.D.2d 596). Sullivan, J.P. Miller, Thompson and Joy, JJ., concur.

In any event, both appraisers would have had to factor in to the actual rent figures "market rent for vacant or owner-occupied space" and it appears that Falk did precisely that. Appraisal Institute, The Appraisal of Real Estate at 511 (12th Ed. 2001). If a court were to conclude, however, that Falk's use of a blended actual/market or stabilized rate was impermissible, respondents showed that the actual income figures would yield an increase in value of $322,281, as of January 1, 2002. R. 118-21. Respondent did not similarly examine Falk to establish what the increase would be as of January 1, 2003. Although unnecessary to do so for the valuation date January 1, 2002, for the reasons stated in the text above, it would have been open to the court to "arrive at a value based on an analysis of both [appraisers'] approaches that emphasized a pragmatic adjustment to the economic realities." In re Bass, 179 AD2d 387 (1st Dept. 1992). See Town of Riverhead v. Saffals Associates, Inc., 145 AD2d 423, 424 (2d Dept. 1988).

It is not necessary that Petitioner show that remediation be ordered by the court or an administrative agency in these circumstances. Bass v. Tax Com'n of City of New York, 179 AD2d 387 (1st Dept. 1992) (foreseeable cost to abate asbestos contamination may be considered) (cited with approval in Commerce Holding Corp., 88 AD2d at 732-33). There was also during argument on the motion to strike petitioner's appraisal and during cross-examination of the appraiser a contention that, because the petitions themselves were directed to specific tax assessments made by the assessor to identified and discreet tax parcels, that the appraiser was thereby obligated to prepare reports directed to discreet tax parcels.