The plaintiff brings this small claims action against the defendant, a bank real

estate appraiser, contending that her low appraisal of his home in Chestnut Ridge, New

York, at $280,000 in May of 2009, kept him from obtaining a 4.75% mortgage instead of

the 5% rate. The plaintiff stated that he needed an appraisal of $302,000 to obtain the

lower rate and is seeking damages against the appraiser.

The plaintiff presented evidence that due to the complaint he made against the

defendant to the state Division of Licensing after receiving the appraisal, she was

charged with and admitted to various violations. The violations did not go to the value of

the property and the Division of Licensing made no findings concerning the appraisal

amount. The defendant testified that if the violations had not been committed, she still

would have come to the same figure of $280,000.

The plaintiff obtained an appraisal from an appraiser with another bank for [*2]

$380,000 in September, 2009. The defendant testified that four of the six comparables

listed in that appraisal were outside Fannie Mae guidelines. In addition, she held to her

opinion that the property was worth $280,000.

The first question is whether under these circumstances the appraisal, as

plaintiff alleges, kept the plaintiff from obtaining the mortgage rate he sought. If so, the

next question is whether the defendant should be held liable for having rendered the

appraisal she did.

There are many factors that go into a bank's granting a mortgage

commitment and it is not certain that the first bank would have granted the desired

mortgage if the appraisal had been higher. The plaintiff testified, though, that he did

receive a 5% mortgage from another bank with a $380,000 appraisal at a later date.

Assuming, without deciding, that the first bank would have granted the 4.75% mortgage

on a higher appraisal, there remains the question of appraiser liability.

The court finds no appraiser liability because the appraisal consists of an opinion,

something not actionable. See Mandarin Trading Ltd. v. Wildenstein, 65 AD3d 448 (1st

Dept. 2009).

Judgment for the defendant.

________________________________

DAVID OTIS FULLER, JR.

January 10, 2011VILLAGE JUSTICE [*3]

This decision may be appealed to the Appellate Term, Second Department, within thirty days.