United States of America v. 25.202 Acres of Land and building affixed to the land located in the Town of Champlain, Clinton County, New York: and Amexx Warehouse Company, Inc., dba Duty Free Americas, Inc., et al.,

Filing 92

MEMORANDUM-DECISION & ORDER: adopting the # 77 Report and Recommendations. The Court rules denying the # 42 Motion to Preclude the Valuation Testimony of E. Anthony Casale; granting in part the # 43 Motion to preclude the testimony of Michael E . Ellis to the extent that it relies on the income capitalization method of valuation; granting in part the # 44 Motion to preclude valuation testimony by John A. Couri, Steven D. Zurcher, Simon Falic and Joseph W. Kearney to the extent that all te stimony based upon Michael E. Ellis's income capitalization appraisal is precluded and denied to the extent that Simon Falic and Joseph W. Kearney, i their capacity as owners of the subject property, may testify to its value. Signed by Chief Judge Norman A. Mordue on 3/9/2010. (jmb)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
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United States of America, Plaintiff, -v25.202 Acres of Land and building affixed to the land located in the Town of Champlain, Clinton County, New York: and Amexx Warehouse Company, Inc., d/b/a Duty Free Americas, Inc., et al., Defendants.
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5:06-CV-428 (NAM/DEP)

APPEARANCES: Hon. Richard A. Hartunian, United States Attorney Paula Ryan Conan, Esq., Assistant United States Attorney 100 South Clinton Street Syracuse, New York 13261-7198 and John O. Holm, Esq. United States Department of Justice, Environmental Division P.O. Box 561 Ben Franklin Station Washington, D.C. 20044-0561 and Kristin R. Muenzen, Esq. United States Department of Justice, Commercial Litigation P.O. Box 261 Ben Franklin Station Washington, D.C. 20044-0261 Attorneys for Plaintiff Hiscock & Barclay Law Firm David G. Burch , Jr., Esq., of counsel Kevin R. McAuliffe, Esq., of counsel One Park Place 300 South State Street Syracuse, New York 13202-2078 and Zimmer Law Office PLLC Kimberly M. Zimmer, Esq., of counsel Monroe Building, Suite 301 333 East Onondaga Street Syracuse, New York 13202 Attorneys for Defendants.

Hon. Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM-DECISION AND ORDER Three motions are pending in this condemnation case concerning property owned by defendant Amexx Warehouse Company, Inc., d/b/a Duty Free Americas, Inc.1 Defendant moves (Dkt. No. 42) to preclude the testimony of E. Anthony Casale, the Government's expert witness. The Government moves (Dkt. No. 43) to exclude the valuation testimony of defendant's appraiser Michael E. Ellis to the extent that Ellis relies on an income capitalization method of valuation. The Government also moves (Dkt. No. 44) to preclude valuation testimony by John A. Couri, Steven D. Zurcher, Simon Falic, Joseph W. Kearney, and any undisclosed valuation witnesses.2 Upon referral, United States Magistrate Judge Gustave J. DiBianco issued a Report and Recommendation recommending that this Court: 1. 2.
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deny defendant's motion (Dkt. No. 42) to preclude the valuation testimony of the Government's expert Casale; grant the Government's motion (Dkt. No. 43) to preclude the testimony of Ellis to the extent that it relies on the income capitalization method of valuation; and grant the Government's motion (Dkt. No. 44) preclude valuation testimony by John A. Couri, Steven D. Zurcher, Simon Falic, Joseph W. Kearney, and any undisclosed valuation witnesses to the extent that their testimony is based upon Ellis's income capitalization appraisal; and deny the motion to the extent that Simon Falic and Joseph W. Kearney may testify to the value of their property as owners of that property.

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Defendant submitted an objection to the Report and Recommendation (Dkt. No. 85). The Government filed a response to the objection (Dkt. No. 87). Pursuant to 28 U.S.C. §

As did Magistrate Judge DiBianco, the Court refers to "25.202 Acres of Land and building affixed to the land located in the Town of Champlain, Clinton County, New York: and Amexx Warehouse Company, Inc., d/b/a Duty Free Americas, Inc., et al." as "defendant." On September 10, 2009, Magistrate Judge DiBianco dismissed the motion (Dkt. No. 44) as moot (Dkt. No. 74); however, the parties sought clarification (Dkt. Nos. 75, 76), and the Report and Recommendation addresses the motion.

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636(b)(1)(C), this Court reviews de novo those parts of the Report and Recommendation to which defendant objects. Upon de novo review, the Court accepts and adopts Magistrate Judge DiBianco's excellent Report and Recommendation. It is therefore ORDERED that the Report and Recommendation (Dkt. No. 77) of United States Magistrate Judge Gustave J. DiBianco is accepted and adopted; and it is further ORDERED that defendant's motion (Dkt. No. 42) to preclude the valuation testimony of the Government's expert E. Anthony Casale is denied; and it is further ORDERED that the Government's motion (Dkt. No. 43) to preclude the testimony of Michael E. Ellis to the extent that it relies on the income capitalization method of valuation is granted; and it is further ORDERED that the Government's motion (Dkt. No. 44) to preclude valuation testimony by John A. Couri, Steven D. Zurcher, Simon Falic, Joseph W. Kearney, and any undisclosed valuation witnesses is granted to the extent that all testimony based upon Michael E. Ellis's income capitalization appraisal is precluded, and denied to the extent that Simon Falic and Joseph W. Kearney, in their capacity as owners of the subject property, may testify to its value. IT IS SO ORDERED. March 9, 2010 Syracuse, New York
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