ARS Invs. II 2012-1 HVB, LLC v BlackMeadow Rd. LLC, 2016 NY Slip Op 08436 [145 AD3d 543]

December 15, 2016

Appellate Division, First Department

[*1]

ARS Investors II 2012-1 HVB, LLC, Respondent,

v

BlackMeadow Road LLC et al., Appellants.

Becker & Poliakoff, New York (James J. Mahon of counsel), for appellants.

Norris McLaughlin & Marcus, P.A., New York (Melissa A. Peña of counsel), for respondent.

Deficiency judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered August 14, 2015, confirming and ratifying a referee’s report of the sale of the mortgaged premises, dated March 19, 2014, and awarding plaintiff a sum of money, unanimously affirmed, with costs.

Plaintiff established prima facie through its expert’s appraisal “the fair and reasonable market value of the mortgaged premises” (RPAPL 1371 [2]; see White Knight NYC Ventures, LLC v 15 W. 17th St., LLC , 110 AD3d 576 [1st Dept 2013]). Defendants failed to establish that the highest and best use of the property was something other than the existing use, on which plaintiff’s expert based his appraisal ( see National Bank of N. Am. v Systems Home Improvement , 69 AD2d 557, 562-563 [2d Dept 1979], affd 50 NY2d 814 [1980]; BTC Mtge. Invs. Trust 1997-SI v Altamont Farms , 284 AD2d 849 [3d Dept 2001]). Defendants’ expert did not show that it was “reasonably probable that the asserted highest and best use could or would have been made of the subject property in the near future” ( see National Bank of N. Am. , 69 AD2d at 563). The trial court appropriately rejected defendants’ expert’s testimony as being speculative and devoid of factual foundation support ( see BTC Mtge. Invs. Trust 1997-SI at 850). Concur—Mazzarelli, J.P., Andrias, Saxe, Feinman and Gische, JJ..