                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     520036
_________________________________

In the Matter of HOME DEPOT
   U.S.A. INC.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ASSESSOR OF THE TOWN OF
   QUEENSBURY et al.,
                    Appellants.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   April 24, 2015

Before:   Peters, P.J., Garry, Egan Jr. and Lynch, JJ.

                             __________


      Muller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah
Everhart of counsel), for Assessor of the Town of Queensbury and
others, appellants.

      Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Karla
Williams Buettner of counsel), for Queensbury Union Free School
District, appellant.

      Cronin, Cronin, Harris & O'Brien, PC, Uniondale (Erin
O'Brien of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Krogmann, J.),
entered January 28, 2014 in Warren County, which granted
petitioner's applications, in two proceedings pursuant to RPTL
article 7, to reduce the 2007 and 2008 tax assessments on certain
real property owned by petitioner.
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      Petitioner operates a Home Depot retail store on a 10.62-
acre parcel of real property in the Town of Queensbury, Warren
County. The property includes a 93,065 square-foot building with
an attached 18,720 square-foot garden center and parking area.
After respondent Assessor of the Town of Queensbury assessed the
property at $8,737,000 for both the 2007 and 2008 tax years,
petitioner commenced these RPTL article 7 proceedings to
challenge those assessments. At the ensuing trial, the parties
presented the testimony and competing reports of their respective
appraisers concerning the property's fair market value.
Petitioner's appraiser, Chris Harland, used the comparable sales
and income capitalization methods to value the property at
$5,000,000 for 2007 and $5,050,000 for 2008. Respondents'
appraiser, Neil Cherkosly, valued the property at $12,200,000 for
both tax years using the comparable sales, income capitalization
and reproduction cost methods. Supreme Court adopted the values
set forth in Harland's appraisal and granted petitioner's
applications. Respondents appeal.

      A local tax assessment is presumptively valid and, to
overcome that presumption, a petitioner must present substantial
evidence that the property is overvalued (see Matter of Board of
Mgrs. of French Oaks Condominium v Town of Amherst, 23 NY3d 168,
174-175 [2014]; Matter of Niagara Mohawk Power Corp. v Assessor
of Town of Geddes, 92 NY2d 192, 195 [1998]; Matter of Highbridge
Dev. BR, LLC v Assessor of the Town of Niskayuna, 121 AD3d 1324,
1325-1326 [2014]). Petitioner met this threshold burden here
through its submission of the detailed appraisal of Harland, a
certified real estate appraiser with considerable experience, who
utilized accepted methodologies and adequately set forth his
calculations and the necessary details regarding the properties
(see Matter of Clara Welch Thanksgiving Home v Board of
Assessment Review for the Town of Otsego, County of Otsego &
State of N.Y., 123 AD3d 1313, 1314 [2014]; Matter of Highbridge
Dev. BR, LLC v Assessor of the Town of Niskayuna, 121 AD3d at
1326; Matter of Eckerd Corp. v Semon, 44 AD3d 1232, 1233 [2007]).
The appropriateness of the comparable properties used by Harland
in his analysis goes to the weight to be given to his appraisal,
not, as respondents contend, the appraisal's competency to raise
a valid dispute regarding valuation (see Matter of FMC Corp.
[Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 188 [1998]; Matter
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of Rite Aid of N.Y. No. 4928 v Assessor of Town of Colonie, 58
AD3d 963, 966 [2009], lv denied 12 NY3d 709 [2009]; Matter of
Eckerd Corp. v Semon, 35 AD3d 931, 933 [2006]).

      With petitioner having rebutted the presumptive validity of
the assessments, Supreme Court was obligated to "weigh the entire
record, including evidence of claimed deficiencies in the
assessment, to determine whether petitioner has established by a
preponderance of the evidence that its property has been
overvalued" (Matter of FMC Corp. [Peroxygen Chems. Div.] v
Unmack, 92 NY2d at 188; accord Matter of Board of Mgrs. of French
Oaks Condominium v Town of Amherst, 23 NY3d at 175; Matter of
Village Sq. of Penna, Inc. v Board of Assessment Review of Town
of Colonie, 123 AD3d 1402, 1404 [2014], lv denied 25 NY3d 903
[2015]). "Where, as here, conflicting expert evidence is
presented, we defer to the trial court's resolution of
credibility issues, and consider whether the court's
determination of the fair market value of the subject property is
supported by or against the weight of the evidence" (Matter of
Lowe's Home Ctrs., Inc. v Board of Assessment Review and/or Dept.
of Assessment Review of Tompkins County, 106 AD3d 1306, 1307
[2013] [internal quotation marks and citations omitted]; see
Highbridge Dev. BR, LLC v Assessor of the Town of Niskayuna, 121
AD3d at 1327-1328).

      Respondents' primary objection to Harland's appraisal
concerns the comparable properties employed in his analysis,
which focused on the fee simple value of the property
unencumbered by any leases. Whereas Cherkosly used two big-box
store sales encumbered by long-term leases in his sales
comparison analysis, Harland utilized the sales of seven vacant
big-box stores located outside of the Capital District. For his
income capitalization approach, Harland chose as comparable
properties six second-generation lease properties – that is,
retail leases of buildings formerly occupied by big-box
retailers. Harland explained that, unlike Cherkosly, he did not
use any properties subject to build-to-suit leases because such
leases are typically above market and encompass land acquisition,
development and construction costs that do not reflect the actual
market value of the property. Harland declined to consider the
properties utilized as comparables by Cherkosly on this basis,
                              -4-                520036

opining that the sale and lease of large retail stores on the
open market were more reflective of true market value.

      We have repeatedly found Harland's rationale for excluding
properties subject to build-to-suit leases to be plausible (see
Matter of Eckerd Corp. v Burin, 83 AD3d 1239, 1242-1243 [2011];
Matter of Rite Aid of N.Y. No. 4928 v Assessor of Town of
Colonie, 58 AD3d at 966; Matter of Brooks Drugs, Inc. v Board of
Assessors of City of Schenectady, 51 AD3d 1094, 1095 [2008], lv
denied 11 NY3d 710 [2008]; Matter of Eckerd Corp. v Semon, 44
AD3d at 1234; Matter of Eckerd Corp. v Semon, 35 AD3d at 934; see
also Matter of Kohl's Ill. Inc. #691 v Board of Assessors of the
Town of Clifton Park, 123 AD3d 1315, 1317 [2014]), and find no
reason to reach a different conclusion here. While most of the
comparable properties utilized by Harland are outside the
immediate geographic vicinity of the subject property, the
decision whether to accept such evidence rests within the sound
discretion of the trial court (see Matter of General Elec. Co. v
Town of Salina, 69 NY2d 730, 731 [1986]; Matter of Great Atl. &
Pac. Tea Co. v Kiernan, 42 NY2d 236, 241-242 [1977]; Matter of
General Elec. Co. v Assessor of Town of Rotterdam, 54 AD3d 469,
473 [2008], lv denied 11 NY3d 711 [2008]; Welch Foods v Town of
Westfield, 222 AD2d 1053, 1054 [1995]). We find no abuse of that
discretion here, as the record reflects that the number of
reasonably similar home improvement stores in the vicinity was
limited, and Harland explained the basis for his decision not to
consider such nearby properties, set forth relevant demographic
data and traffic counts to support the comparable markets he
relied on and provided detailed adjustment grids together with
explanations for the adjustments made so as to permit a
meaningful comparison to the subject property (see Matter of
United Parcel Serv. v Assessor of Town of Colonie, 42 AD3d 835,
838 [2007]). Emphasizing that the primary comparable relied upon
by Cherkosly was not the product of an arm's length transaction
and noting the absence of any factual support or explanation for
the admittedly "subjective" adjustments that he made to his
comparable properties, Supreme Court ultimately found the
comparable properties used by Harland to be superior to those
used by Cherkosly. Upon our review of the record and according
appropriate deference to Supreme Court's assessment of
credibility, we cannot say that its decision to credit the
                              -5-                  520036

findings and conclusions set forth in Harland's appraisal was
contrary to the weight of the evidence (see Matter of Gran Dev.,
LLC v Town of Davenport Bd. of Assessors, 124 AD3d 1042, 1047
[2015]; Matter of Highbridge Dev. BR, LLC v Assessor of the Town
of Niskayuna, 121 AD3d at 1327-1328; Matter of Eckerd Corp. v
Burin, 83 AD3d at 1243; Matter of Rite Aid of N.Y. No. 4928 v
Assessor of Town of Colonie, 58 AD3d at 966; Matter of Eckerd
Corp. v Semon, 35 AD3d at 934).

     Garry, Egan Jr. and Lynch, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
