Opinion
August 30, 1993
Appeal from the Supreme Court, Queens County (Hyman, J.H.O., Lerner, J.).
Ordered that the judgment is modified, on the law and the facts, by (1) deleting so much of the second decretal paragraph thereof as directed the plaintiff to pay the defendant the sum of $87 per week in maintenance until such time as the plaintiff had paid the defendant another $100,000 of the equitable distribution award, and substituting therefor a provision directing the plaintiff to pay the defendant the sum of $87 per week until such time as he had paid the defendant the remaining $38,148 of the equitable distribution award, (2) reducing the defendant's distributive award set forth in the fourth decretal paragraph from $828,285 to $310,236, and (3) deleting so much of the sixth decretal paragraph thereof as directed the plaintiff to pay to the defendant $856,197, and substituting therefor a provision that the sum of $338,148 shall be paid by the plaintiff to the defendant; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment; and it is further,
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The property valuations in issue involve commercial real estate. Both parties produced expert witnesses who used the capitalization of net income method for determining value. However, the wife's expert witness grossly overestimated the annual incomes and underestimated the annual expenses. In contrast, the husband's experts used the actual incomes and expenses, which were readily available at trial, made adjustments for the mortgage, and considered evidence of comparable sales in the area. The wife's expert witness's findings of net income were erroneous to the extent that they were based on estimated incomes and costs rather than actual incomes and costs (see, Matter of Conifer Baldwinsville Assocs. v Town of Van Buren, 115 A.D.2d 325, affd 68 N.Y.2d 783; Matter of Schoeneck v City of Syracuse, 93 A.D.2d 988; Matter of Milton Harbor Co. v Assessor of City of Rye, 47 A.D.2d 632). In addition, the wife's expert made his calculations using 1986 as the valuation date, while the husband's experts used the time of trial as the valuation date, which the wife concedes was proper. Further, the wife's expert failed to deduct the outstanding mortgage of $2,184,167 from the value of the Penn Plaza property. Thus, we have adopted the valuations by the husband's experts and have modified the distributive award (and the corresponding maintenance provision) accordingly (see, Lischynsky v Lischynsky, 120 A.D.2d 824, 828). The wife's distributive award with respect to the Bowery property amounts to $78,044, and the wife's distributive award with respect to the Penn Plaza property amounts to $126,259 (5% of [$4,709,342 minus $2,184,167]).
We have not addressed the husband's contention regarding possible tax consequences in the event he should sell his interest in the partnerships which own the commercial properties, since it is unclear whether such a sale will take place.
We have examined the parties' remaining contentions and find that none warrant further relief. Bracken, J.P., Lawrence, Eiber and O'Brien, JJ., concur.