NOGHREY v. TOWN OF BROOKHAVEN

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Supreme Court, Appellate Division, Second Department, New York.

Parviz NOGHREY, Appellant, v. TOWN OF BROOKHAVEN, et al., Respondents.

2017–07189

Decided: January 23, 2019

SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ. Gleich, Farkas & Emouna LLP, Great Neck, N.Y. (Stephan B. Gleich, Lawrence W. Farkas, and Lara P. Emouna of counsel), for appellant. Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Paul F. Millus and Daniel B. Rinaldi of counsel), for respondents.

DECISION & ORDER

ORDERED that the judgment is affirmed, with costs.

In 1985, the plaintiff purchased two parcels of real property, known as Liberty Plaza and Diamond Plaza, which were located .85 miles away from each other on Middle Country Road in the Town of Brookhaven, with the intention of building shopping plazas (see Noghrey v. Town of Brookhaven, 48 A.D.3d 529, 530, 852 N.Y.S.2d 220).  At the time the plaintiff purchased the properties, they were zoned for J–2 business, which permitted the construction of shopping plazas (see id. at 530, 852 N.Y.S.2d 220).  In 1989, the Town changed the zoning of numerous parcels, including Liberty Plaza and Diamond Plaza, from J–2 business to B–1 residence (id.).  The salient facts concerning the plaintiff's claim that this rezoning effectuated a partial regulatory taking without just compensation of Liberty Plaza are set forth in this Court's decisions and orders on prior appeals (see Noghrey v. Town of Brookhaven, 92 A.D.3d 851, 938 N.Y.S.2d 613; Noghrey v. Town of Brookhaven, 48 A.D.3d 529, 852 N.Y.S.2d 220).  On the most recent appeal, this Court determined that the jury's finding that the rezoning effectuated a partial regulatory taking of Liberty Plaza was inconsistent and contrary to the weight of the evidence because there was no fair interpretation of the evidence by which the jury could have found both that the rezoning effectuated a regulatory taking of Liberty Plaza and that the plaintiff's damages as to that property were only $360,000.  The 9th and 12th causes of action, which related to Liberty Plaza, were severed and remitted to the Supreme Court, Suffolk County, for a new trial (see Noghrey v. Town of Brookhaven, 92 A.D.3d 851, 938 N.Y.S.2d 613).  Following the retrial, the jury found in favor of the defendants.  The court denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law in his favor or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial.  A judgment was entered on June 2, 2017, in favor of the defendants and against the plaintiff, dismissing the 9th and 12th causes of action of the amended complaint.  The plaintiff appeals.

Contrary to the plaintiff's contention, there are no extraordinary circumstances that warrant reconsidering our prior determination in a decision and order dated February 13, 2008, on a prior appeal (see Aurora Loan Servs., LLC v. Grant, 88 A.D.3d 929, 931 N.Y.S.2d 523; see generally Noghrey v. Town of Brookhaven, 48 A.D.3d 529, 852 N.Y.S.2d 220).

The plaintiff's contention that, based on our decision and order dated February 21, 2012 (92 A.D.3d 851, 938 N.Y.S.2d 613) (hereinafter the 2012 decision), the defendant should be collaterally estopped from contesting that there had been a regulatory taking of Liberty Plaza is unpersuasive.  In the 2012 decision, we upheld a jury verdict finding a regulatory taking in favor of the plaintiff in relation to Diamond Plaza.  However, we also concluded that the jury's finding of a regulatory taking as to Liberty Plaza was inconsistent and contrary to the weight of the evidence.  We therefore held that new trial should be held with respect to Liberty Plaza.  As the circumstances involving Liberty Plaza are factually distinct from those presented as to Diamond Plaza, collateral estoppel did not apply to establish any of the factors as to Liberty Plaza (see Matter of Howard v. Stature Elec., Inc., 20 N.Y.3d 522, 525, 964 N.Y.S.2d 77, 986 N.E.2d 911; see generally Noghrey v. Town of Brookhaven, 92 A.D.3d 851, 938 N.Y.S.2d 613).

We agree with the Supreme Court's determination, on retrial, denying the plaintiff's motion to preclude or strike the testimony of the defendants' expert as unreliable or consisting of inadmissible hearsay (see Malanga v. City of New York, 300 A.D.2d 549, 550, 752 N.Y.S.2d 391; Matter of Ames Dept. Stores v. Assessor of Town of Greenport, 276 A.D.2d 890, 891–892, 714 N.Y.S.2d 362; cf. Casiero v. Stamer, 308 A.D.2d 499, 500, 764 N.Y.S.2d 470).  The claimed deficiencies in the expert's appraisal went to the weight to be given the expert's testimony, not its admissibility (see White Knight NYC Ventures, LLC v. 15 W. 17th St., LLC, 110 A.D.3d 576, 577, 973 N.Y.S.2d 208; National Fuel Gas Supply Corp. v. Goodremote, 13 A.D.3d 1134, 1135, 787 N.Y.S.2d 570).

We also agree with the Supreme Court's denial of the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendants and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial.  There was a valid line of reasoning and permissible inferences from which the jury could rationally conclude that the rezoning did not effectuate a partial regulatory taking of Liberty Plaza (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).  Moreover, given the conflicting expert testimony regarding the diminution in value of Liberty Plaza, and the character of the government action as a comprehensive rezoning, the verdict in favor of the defendants was based on a fair interpretation of the evidence and, therefore, was not contrary to the weight of the evidence (see Yanyak v. Rosenman, 134 A.D.3d 817, 819, 20 N.Y.S.3d 647; Albano v. K.R. & S. Auto Repair, Inc., 123 A.D.3d 748, 749–750, 998 N.Y.S.2d 431; see also Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631; Adams v. Village of Wesley Chapel, 259 Fed. Appx. 545, 549 [4th Cir.2007] ).

The plaintiff's remaining contentions are either without merit or not properly before this Court.

ROMAN, J.P., HINDS–RADIX, MALTESE and LASALLE, JJ., concur.

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