Upon the foregoing papers, claimant Malba Cove Properties, Inc., moves for an order, pursuant to 22 NYCRR 202.61 (a) (3), permitting it to file an amended appraisal report.

The trial is currently scheduled to commence on July 12, 2006.

In support of its motion, claimant explains that its appraiser, Daniel Sciannameo of Albert Valuation Group of New York, relied upon the analysis of its zoning expert, Ronald Ogur, in valuing the subject property. Mr. Ogur originally concluded that the property could be developed for multi-family use, as an apartment house, or as eight single family, detached homes; he analyzed both scenarios with and without the de-mapping of the unimproved streets. Mr. Ogur then calculated the gross building area available for development. In his rebuttal report, Mr. Ogur increased the number of single family homes that could be constructed to ten.

Subsequent to the exchange of the appraisal and rebuttal reports, Mr. Ogur discovered that he had made what claimant characterizes as a "miscalculation" regarding the permitted area of the third floor for each of his development scenarios. More specifically, Mr. Ogur discovered that the mathematics were incorrect and that the maximum floor area of the third floor is 81.6% of the floor below, and not 60%, as he had originally opined. Accordingly, by letter dated May 1, 2006, Mr. Ogur made the necessary revisions to his reports, stating that the increased area is "due to the use of the base plane' rather than the curb level' as the starting point for maximum building heights." In his affidavit in support of the motion, Mr. Ogur further explains that "the mathematical calculations that I used to determine the area of the third floor space did not properly account for the fact that the base plane was three feet above curb level." By letter amendment dated May 25, 3006, Mr. Sciannameo incorporated Mr. Ogur's revisions and prepared a corresponding amendment.

Claimant thus argues that the amendment should be permitted, since it does not seek to introduce a new legal theory or concept, claimant has not changed the zoning regulations upon which it relies, nor has it altered the basis of its conclusions. Hence, "[t]he Amended Appraisal is simply a matter of making the correct calculations based upon the underlying facts." Claimant further contends that since the constitution requires that a property owner receives just compensation for property taken by eminent domain, this constitutional mandate compels the conclusion that it should be permitted to amend its appraisal report.

The City opposes claimant's motion, arguing that claimant's request to amend its appraisal is based upon a mistake made by Mr. Ogur as the result of inadvertence or oversight which increases the value of the subject property from $10,000,000 to $11,290,000. Hence, the motion should be denied on the ground that claimant fails to demonstrate good cause for the amendment. In addition, the exchange of appraisal reports is part of disclosure. Inasmuch as the note of issue was served on January 31, 2006, claimant similarly fails to establish "unusual or unanticipated circumstances" sufficient to permit further discovery after said filing.

In addressing the issues raised herein, the court first recognizes that court rules control the exchange and content of appraisal reports submitted in tax assessment and condemnation proceedings. In accordance with 22 NYCRR 202.61 (c), appraisal reports in both proceedings are subject to the same requirements.^[FN1] Hence, the reports "must contain a statement of the method of appraisal relied on and the appraiser's conclusions as to the property's value, along with facts, figures and calculations by which the conclusion was reached" (Bialystock & Bloom v Gleason, 290 AD2d 607 [2002], citing 22 NYCRR 202.59 [g] [2]^[FN2]). [*4]

As is also relevant here, CPLR 3140 provides, in pertinent part, that "the chief administrator of the courts shall adopt rules governing the exchange of appraisal reports intended for use at the trial in proceedings for condemnation." 22 NYCRR 202.61 (a) (3) provides that:

"Upon application of any party upon such notice as the court in which the proceeding is pending shall direct, the court may, upon good cause shown, relieve a party of a default in filing a report, extend the time for filing reports, or allow an amended or supplemental report to be filed upon such conditions as the court may direct."

Although the rule does not define good cause:

"It has been held that inadvertence or oversight is not good cause (Matter of Consolidated Edison Co. v State Bd. of Equalization & Assessment, 83 AD2d 355, affd 58 NY2d 710), nor is the mere desire to introduce a new theory or new evidence (see Matter of City of Troy v Board of Assessors, 53 AD2d 794; Home Gas Co. v Miles, 40 AD2d 896). Finally, dissatisfaction with an attorney and the appraisal report, without proof of undue hardship, does not constitute good cause (Laken Realty Corp. v State of New York, 37 AD2d 885)."

As is also relevant to the issue now before the court, 22 NYCRR 202.21, which rule pertains to the filing of a note of issue and certificate of readiness, provides that the court can permit further discovery after a note of issue is filed "[w]here unusual or unanticipated circumstances develop."^[FN4]

Claimant herein fails to establish good cause to amend its appraisal report. In so holding, the court rejects the only argument offered by claimant, i.e., its assertion that good cause exists because it is merely attempting to correct a mathematical calculation. In seeking to amend its report, claimant alleges that Mr. Ogur's original calculations "did not properly account for the fact that the base plane was three feet above curb level." Accordingly, claimant is changing a basic premise upon which its appraisal was based, which in turn necessitated significant changes to its calculations.^[FN5] Hence, this is not a case in which a mathematical error is being corrected. Instead, claimant is seeking to introduce a new theory upon which its appraisal is based. The court further finds that changing the theory of the valuation at this stage of the proceeding would prejudice the City, since it has prepared for trial in reliance upon claimant's use of curb level as a starting point for its calculations, only weeks before the trial commences.

Having so determined, since this proposed change is attributable to inadvertence or mistake on the part of Mr. Ogur, or the desire to introduce a new theory upon which [*6]claimant's appraisal is based, the above discussed case law compels the conclusion that claimant has failed to establish good cause to amend (cf. In re Town of Guilderland, 267 AD2d 837, 838 [1999] [court prudently allowed claimant to file a supplemental appraisal incorporating an arm's length sale that occurred after the appraisal was filed]).

In so holding, the court implicitly rejects claimant's assertion that its constitutional right to just compensation compels the conclusion that the proposed amendment must be permitted. In this regard, it must be emphasized that claimant has already submitted both an appraisal report and a rebuttal appraisal, so that the court's refusal to permit an amendment of the appraisal does not deprive claimant of the opportunity to present any evidence on valuation (see generally Matter of Acquisition of Real Property by Town of Guilderland, 244 AD2d 604, 605-606). Further, if the mere assertion that the proposed amendment supports a higher value for the condemned property was found to constitute good cause to amend, 22 NYCRR 202.61 (a) (3) would be effectively nullified, since no claimant would seek leave to amend an appraisal that supports a lower valuation. In addition, claimant offers no statutory authority or case law precedent in support of its contention.

The court also notes that in a letter dated December 7, 2005 from Mr. Ogur to Mr. Goldstein in which he reviewed the appraisal prepared by the City, Mr. Ogur notes that the height of the proposed building can be calculated from the base flood elevation, which is two to three feet higher than the grade in this case. This paragraph clearly establishes that Mr. Ogur was aware that the height of the proposed buildings would vary, depending upon whether the base plane or the curb level was utilized in his calculations. Nonetheless, claimant waited an additional six months, until the eve of trial, to recalculate its valuation premised upon the base flood elevation instead of curb level. Claimant's knowledge of the facts upon which its proposed amendment is premised months before seeking leave to amend further supports the conclusion that it has failed to establish good cause for the relief sought.

Claimant's motion must also be denied in accordance with 22 NYCRR 202.21. Herein, since the City served its note of issue on January 31, 2006 and claimant did not seek permission to file a supplemental appraisal report until June 14, 2006, in order to obtain permission for further discovery, claimant is required to establish that additional discovery is necessary because unusual or unanticipated circumstances have developed (see e.g. Rodriguez v Sau Wo Lau, 298 AD2d 376 [2002]; Perla v Wilson, 287 AD2d 606 [2001]; Aviles v 938 SCY, 283 AD2d 935 [2001]; Audiovox v Benyamini, 265 AD2d 135 [2000]). Claimant fails to make such a showing, particularly since the above discussed letter, dated December 7, 2005, establishes that claimant was aware of the facts and issues raised by the use of base plane rather than curb level before the note of issue was filed (see e.g. Francis v Board of Educ. of the City of Mount Vernon, 278 AD2d 449 [2000] [supreme court providently exercised its discretion in denying that branch of plaintiffs' motion, made after the plaintiffs filed a note of issue and certificate of readiness, which [*7]was to compel the defendant to provide additional disclosure, since plaintiffs failed to offer any evidence of unusual or unanticipated circumstances that developed subsequent to the filing requiring additional pretrial proceedings to prevent substantial prejudice]; cf. Karakostas v Avis Rent A Car Sys., 306 AD2d 381 [2003] [unusual or unanticipated circumstances sufficient to allow respondent to pursue additional discovery were present under circumstances where plaintiff served a supplemental response to discovery indicating for the first time that plaintiff would call an expert to testify about plaintiff's disability and lost future earnings after the filing of the note of issue]; see generally James v New York City Tr. Auth., 294 AD2d 471 [2002] [defendants waived their right to conduct physical examinations of the injured plaintiff by their failure to move to vacate the note of issue within 20 days after service of it and the certificate of readiness]).

For the above stated reasons, claimant's motion for leave amend its appraisal is denied.

The foregoing constitutes the decision and order of the court.

E N T E R

J. S. C.