Opinion
Argued April 29, 1981
Decided June 9, 1981
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, LEO BROWN J.
Michael J. Greco, Thomas R. Newman, Ignatius John Melito and Louis G. Adolfsen for appellants-respondents.
Allen G. Schwartz, Corporation Counsel (Morris Einhorn and Leonard Koerner of counsel), for respondent-appellant.
MEMORANDUM.
On the appeal by the City of New York, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for a review of the facts.
Special Term awarded claimants a 5% value increment for plottage. The court noted that while the customary award for plottage is 10%, a lesser award was appropriate here because this parcel was so large that it was nearing the point of "maximum utility" and its value as an aggregate of lots was only slightly greater than the sum of the values of the individual lots it contained. The Appellate Division held that Special Term's 5% award was erroneous as a matter of law and modified by increasing the plottage award on the entire parcel on the basis of a purported "concession" by the city.
We cannot agree that the city conceded that a 10% value increment for plottage should be applied to the entire parcel. Rather, the city's appraiser stated that a 10% increment would be appropriate only if applied to the "net acreage" remaining after a deduction for streets which the appraiser viewed as necessary for development. The city's concession was predicated upon its appraiser's assumption that only such "net acreage" was entitled to a "plottage" award. This being so, it was error for the court below to increase the plottage award for the entire parcel from 5% to 10% on the basis of this "concession".
Nor do we believe that Special Term's award of a 5% increment for plottage on the entire parcel was erroneous as a matter of law. Hence, the Appellate Division's modification of that award "on the law" was improper. However, inasmuch as this court has no power to determine whether, as a factual matter, Special Term erred in awarding a 5% increment, we must remit the matter to the Appellate Division for a review of the facts. (CPLR 5613.)
The appeal taken as of right by claimants should be dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
On claimants' appeal: Appeal dismissed, without costs.
On city's appeal: Order, insofar as appealed from, reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.