Niagara Falls Urban Renewal Agency v. Gorge Terminal Realty Co.

— Judgment unanimously reversed, on the law and facts, without costs, and a new trial granted. Memorandum: In this condemnation proceeding, the court fixed the market value of a motel and restaurant complex, less fixtures, at $1,700,000. The court correctly rejected the income approach to value offered by the owner’s appraiser since he capitalized, not the fair rental value of the property, but the gross profits of the business (see Humbert v State of New York, 278 App Div 1041, affd 303 NY 929). The court computed the market value of the property by averaging the results of the owner’s market data and cost approaches. The cost valuation was $1,255,146; the market data valuation, $2,152,092; and the average, $1,700,000. In determining the market value of the property, the court gave undue weight to the cost approach. While admissible in evidence as one factor to be considered, the cost approach is an inappropriate method of estimating the market value of real property where the property does not qualify as a specialty and another method is available (Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236; Matter of Huie [Fletcher — City of New York], 2 NY2d 168; Matter of Rochester Urban Renewal Agency v Willsea Works, 62 AD2d 1169, affd 48 NY2d 694; Matter of City of Rochester v S. C. Toth, Inc., 59 AD2d 1020, affd 45 NY2d 984; Matter of Town of Islip [Harrison Ventures], 48 AD2d 699; Matter of City of Rochester [Genesee Crossroads — Lanni], 33 AD2d 888; Kingston Urban Renewal Agency v Strand Props., 33 AD 2d 594; 2 Orgel, Valuation Under Eminent Domain, § 199). Since the award is not supported by a proper method of valuation, we reverse and grant a new trial. New appraisal reports shall be exchanged prior to retrial (22 NYCRR 1024.24). (Appeals from judgment of Supreme Court, Niagara County, Kuszynski, J. — condemnation.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Boomer, JJ.