Upon the foregoing papers in this eminent domain proceeding, the City of New York (the City) moves for an order dismissing the fixture claims of Ribentz, Inc. and Alson Knitting, Inc. (claimants).

Title to the subject property, located at North Henry Street in Brooklyn (the "property"), vested in the City on November 21, 1995. Claimants, who owned damage parcels 79, 80 and 81 (Block 2464, Lots 10, 11 and 12), filed notices of claim for damages with respect to fixtures that were allegedly located on the property as of the date of vesting. By letter dated November 1, 2005, the City requested claimants' attorney to provide a copy of their fixture appraisal report. The City again requested a copy of the report by letter dated November 23, 2005. When the parties appeared in court on December 7, 2005, the court instructed claimants' attorney to provide the City with a copy of the report.

To date, the City has not received the report.

In support of its motion, the City argues that Uniform Rule for the Trial Court of New York § 202.61 (a) (1) (22 NYCRR 202.61 [a] [1]) provides that in a condemnation proceeding, appraisal reports shall be exchanged no later than nine months after a claim is filed.^[FN1] In this instance, nine months expired sometime in 1997 and claimants have yet to [*2]exchange their report. The City thus concludes that the fixture claims filed by claimants should be dismissed.

Claimants do not oppose the City's motion.

The function of an appraisal report "is to enable adequate and intelligent preparation of the issues for trial (see, Homer v State of New York, 36 AD2d 333, 335, affd 30 NY2d 723) and to limit expert testimony at trial (see, 22 NYCRR 202.61 [e])" (In re Town of Guilderland, 267 AD2d 837, 838 [1999]). "The reasoning behind this rule is that a failure to disclose such facts and source materials at the appraisal stage will effectively deny opposing counsel the opportunity to adequately prepare for cross-examination" (Niagara Mohawk Power v Town of Bethlehem Assessor, 225 AD2d 841, 843 [1996], citing Matter of White Plains Props. v Tax Assessor of City of White Plains, 58 AD2d 871 [1977], affd 44 NY2d 971 [1978]). As is also relevant to the instant dispute, 22 NYCRR 202.61 (e) provides that "[u]pon trial, all parties shall be limited in their affirmative proof of value to matters set forth in their respective appraisal reports. Any party who fails to file an appraisal report as required by this section shall be precluded from offering any appraisal testimony on value."

Accordingly, inasmuch as claimants have failed to file an appraisal report, any opinion with regard to the value of the fixtures will be inadmissible at trial (see e.g. White Plains Prop., 44 NY2d 971 [the court properly excluded rebuttal testimony by a professional consulting engineer on the ground that it was an attempt to introduce expert testimony as to value which was not included in the report filed and exchanged with petitioners, so that such testimony was precluded by the court rule]; see also Taylor Builders v City of Saratoga Springs Bd. of Assessment Review, 263 AD2d 829, 831 [1999] [lacking an appraisal and expert testimony to overcome the presumptive validity of challenged assessments, dismissal of tax certiorari petition seeking review of the tax assessments was warranted]). Hence, inasmuch as claimants will be precluded from introducing evidence at trial of the value of the fixtures allegedly located on the property, their claim must be dismissed. In so holding, it is noted that although the court is granted [*3]authority to relieve a party of its default in filing an appraisal report upon good cause shown pursuant to Rule 202.61 (a) (3), claimants have not moved for such relief.^[FN2]

For the foregoing reasons, the City's motion is granted and the fixture claims of Ribentz, Inc. and Alson Knitting, Inc., are dismissed.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.