MATTER OF ABDELLA v. SCRIBNER, 31 N.Y.2d 940 (1972)

293 N.E.2d 96, 340 N.Y.S.2d 928

In the Matter of ERNEST ABDELLA, Appellant, v. ROBERT SCRIBNER, as Commissioner of Assessment and Taxation of the City of GLOVERSVILLE, et al., Respondents. (And Another Proceeding.)

Court of Appeals of the State of New York.Argued December 5, 1972
Decided December 29, 1972

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, FELIX J. AULISI, J.

Page 941

Ernest Abdella, appellant in person.

Angelo D. Lomanto, City Attorney, and H. Andrew Schlusberg
for respondents.

Page 942

Order affirmed without costs. Although error was committed when the trial court accepted the city expert’s method of valuation based in part on the capitalization of income from hypothetical buildings, it was harmless error as the other evidence in the record amply supports the determination in the courts below.

Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, JASEN and GIBSON. Judge BREITEL dissents and votes to reverse in the following opinion.

BREITEL, J. (dissenting).

I dissent and vote to reverse and remand for a new hearing on the ground that an examination of the entire record demonstrates that the city’s expert relied exclusively on a hypothetical assumption as to nonexistent and nonprojected buildings. The deficiency is not supplied by the reference to other rental values which were used only as an adjunct to the computation of impermissible, hypothetical structures (see Arlen of Nanuet v State of New York, 26 N.Y.2d 346, 353-354, 356, 358; People ex rel. Parklin Operating Corp. v. Miller, 287 N.Y. 126, 130-131 Levitin v. State of New York, 12 A.D.2d 6, 8). Moreover, the record does not contain proof of comparable sales to support the Referee’s findings.