Opinion
December 17, 1982
Appeal from the Supreme Court, Onondaga County, Aronson, J.
Present — Dillon, P.J., Simons, Doerr and Boomer, JJ.
Judgment unanimously affirmed, with costs to petitioner. Memorandum: In this tax certiorari proceeding the trial court reduced assessments by almost half. In using the income approach to value, the court relied on the subject's actual rent, and, contrary to respondent's assertion, we find no error in its doing so. Although actual income may be disregarded if it does not reflect full value ( Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 N.Y.2d 538, 543), the court's use of the actual rent was supported by the comparable rentals supplied by petitioner's expert. The conflicting opinions created a question of fact which the court resolved in petitioner's favor. We see no error in this finding, particularly in view of the dissimilarity of respondent's comparables, some of which were located in office buildings with elevator service, whereas the upper floors of the subject are accessible only by a stairway located inside the jewelry store. Finally, we perceive no error in the court's choice of a capitalization rate. Although the figure chosen differed somewhat from our holding in Matter of Syracuse Univ. v City of Syracuse ( 83 A.D.2d 783), we see no basis, on the evidence in this record for modifying the court's findings. Consequently, we affirm the judgment in all respects.