Mirlis v. Yeshiva of New Haven, Inc. ( 2021 )

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ELIYAHU MIRLIS v. YESHIVA OF
NEW HAVEN, INC.
(AC 44016)
Alvord, Elgo and Cradle, Js.
Syllabus
The plaintiff sought to foreclosure a judgment lien on certain real property
owned by the defendant in connection with an unsatisfied judgment
from a previous case involving the parties. The plaintiff submitted an
appraisal before the trial court valuing the property at $960,000, and
the defendant submitted an appraisal valuing the property at $390,000.
Following a hearing, the court found the fair market value of the property
to be $620,000, and rendered a judgment of strict foreclosure in favor
of the plaintiff, from which the defendant appealed to this court. Held
that the trial court did not improperly determine the fair market value of
the property: the record contained ample documentary and testimonial
evidence regarding the valuation of the property in question; moreover,
in light of the significant disagreements between the expert appraisers
offered by the parties, the court reasonably could conclude that a com-
promise figure best reflected the fair market value of the property.
Argued February 9—officially released June 8, 2021
Procedural History
Action to foreclose a judgment lien on certain of the
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of New
Haven, where the court, Spader, J., granted the plain-
tiff’s motion for summary judgment as to liability only;
thereafter, the matter was tried to the court, Baio, J.;
subsequently, the court granted the defendant’s motion
to substitute a cash bond subject to certain conditions;
thereafter, the court, Baio, J., rendered judgment of
strict foreclosure, from which the defendant appealed
to this court. Affirmed.
Jeffrey M. Sklarz, for the appellant (defendant).
John L. Cesaroni, with whom, on the brief, was
James M. Moriarty, for the appellee (plaintiff).
Opinion
ELGO, J. The defendant, Yeshiva of New Haven, Inc.,1
appeals from the judgment of strict foreclosure ren-
dered by the trial court in favor of the plaintiff, Eliyahu
Mirlis. On appeal, the defendant claims that the court
improperly determined the valuation of the property in
question. We affirm the judgment of the trial court.
The relevant facts are not in dispute. The defendant
is a Connecticut corporation that operated an orthodox
Jewish high school in New Haven. In 2016, the plaintiff
brought an action in federal court against the defendant
and Daniel Greer,2 ‘‘alleging that Greer, a rabbi and the
former chief administrator of [the defendant], sexually
abused him for several years while he was a student
at the high school.’’ Mirlis v. Greer, 952 F.3d 36, 40 (2d
Cir. 2020), cert. denied, U.S. , 141 S. Ct. 1265,
209 L. Ed. 2d 8 (2021). Following a trial, the jury returned
a verdict in favor of the plaintiff. The United States
District Court for the District of Connecticut rendered
judgment accordingly and entered a total award of
$21,749,041.10, which included punitive damages and
offer of compromise interest. The United States Court
of Appeals for the Second Circuit subsequently affirmed
the propriety of that judgment. Id., 51.
At all relevant times, the defendant owned real prop-
erty known as 765 Elm Street in New Haven (property).
When the judgment in his federal case went unsatisfied,
the plaintiff filed a judgment lien on the property, which
was recorded on the New Haven land records.3 He then
commenced this action in the Superior Court to fore-
close on that lien.
On November 8, 2017, the plaintiff filed a motion for
summary judgment as to liability only. The defendant
did not oppose that motion, which the court granted
on January 16, 2018. The plaintiff thereafter filed a
motion for a judgment of strict foreclosure, which was
accompanied by an eighty-three page written appraisal
of the property. That appraisal concluded that the fair
market value of the property was $960,000. The defen-
dant filed an objection to the motion for strict foreclo-
sure, claiming that ‘‘there is a dispute as to the value’’
of the property. Appended to the defendant’s opposition
was a two page written appraisal that specified a fair
market value of $375,000 for the property. The defen-
dant later submitted a more comprehensive written
appraisal that estimated the fair market value of the
property at $390,000.
The court held an evidentiary hearing on the valuation
dispute, at which each party submitted the testimony
and written report of their respective appraisers. Both
expert appraisers testified that they had used the sales
comparison approach to determine the property’s fair
market value. Utilizing that approach, the defendant’s
appraiser, Patrick Wellspeak, initially estimated the
value of the property to be $500,000 in light of compara-
ble sales. Wellspeak then explained that he deducted
$110,000 from that estimate due to ‘‘environmental
issues’’ on the property, which resulted in a fair market
value of $390,000. Wellspeak conceded that his conclu-
sions with respect to those issues were predicated on
a report prepared by Derrick Jones, who identified envi-
ronmental issues that allegedly existed on the property.4
On cross-examination, Wellspeak was asked if he did
anything apart from reviewing Jones’ report and speak-
ing with him to assess the environmental condition of
the property; Wellspeak replied, ‘‘No, those would be
the only things that I did, reviewed his report and then
had conversations with him.’’
The plaintiff’s appraiser, Patrick Craffey, concluded
that the fair market value of the property in light of
comparable sales was $960,000. Craffey testified that
he first ‘‘became aware’’ of Jones’ report after he had
performed his appraisal and explained that the report
did not change his conclusions as to the value of the
property, as his appraisal was ‘‘made irrespective of
any environmental contamination.’’
In its subsequent memorandum of decision, the court
began by noting that, in reaching its conclusions, it had
‘‘carefully and fully considered and weighed all of the
evidence received at the hearing; evaluated the credibil-
ity of the witnesses; assessed the weight, if any, to be
given specific evidence and measured the probative
force of conflicting evidence; reviewed all exhibits, rele-
vant statutes, and case law; and has drawn such infer-
ences from the evidence, or facts established by the
evidence, that it deems reasonable and logical.’’ The
court noted that both appraisers had utilized the sales
comparison method to determine fair market value and
had agreed that the highest and best use of the property
was as a school. The court further found that the parties’
respective appraisers, ‘‘while employing the same . . .
method for valuation . . . took different approaches
in doing so. . . . [T]he parties each took issue with the
properties chosen by the other appraiser in determining
the comparative sales.’’ The court also noted that, unlike
Craffey, Wellspeak had considered ‘‘environmental
impact on the fair market value.’’
The court emphasized that ‘‘[t]he ultimate opinions
regarding valuation were at considerable variance. Both
parties take issue with the comparable sales considered
by the other, and each takes issue with the other’s
treatment of environmental concerns.’’ The court con-
tinued: ‘‘When confronted with conflicting evidence as
to valuation, the trier may properly conclude that under
all the circumstances a compromise figure most accu-
rately reflects fair market value.’’ The court then found,
in light of ‘‘all of the evidence presented,’’ that the fair
market value of the property was $620,000. The court
thereafter rendered a judgment of strict foreclosure in
favor of the plaintiff, and this appeal followed.
On appeal, the defendant claims that the court
improperly determined the fair market value of the
property, contending that ‘‘no evidence’’ supported its
valuation. We disagree.
Under Connecticut law, a judgment lien on real prop-
erty may be foreclosed in the same manner as a mort-
gage on that property. General Statutes § 52-380a (c).
The standard of review that governs mortgage foreclo-
sure proceedings thus applies to this judgment lien fore-
closure appeal. ‘‘It is in the trial court’s province to
determine the valuation of mortgaged property, usually
guided by expert witnesses, relevant circumstances
bearing on value, and its own knowledge. . . . The trial
court also determines the credibility and weight
accorded to the witnesses, their testimony, and the
evidence admitted. . . . Thus, the trial court’s conclu-
sion regarding the fair market value of the mortgaged
property will be upheld unless there was an error of
law or a legal or logical inconsistency with the facts
found. . . . Its determination of valuation will stand
unless it appears on the record . . . that the [trial]
court misapplied or overlooked, or gave a wrong or
improper effect to, any test or consideration which it
was [its] duty to regard.’’ (Citations omitted; internal
quotation marks omitted.) J.E. Robert Co. v. Signature
Properties, LLC, 320 Conn. 91, 96, 128 A.3d 471 (2016).
In the present case, the court was presented with
conflicting expert testimony concerning the proper val-
uation of the property in question. Those experts dis-
agreed on precisely which sales should be considered
under the sales comparison approach to valuation,5 as
well as the extent to which environmental concerns
factored into the analysis. As a result, there was a signifi-
cant discrepancy between the $960,000 valuation of the
property provided by the plaintiff’s appraiser and the
$390,000 valuation provided by the defendant’s
appraiser.
As our Supreme Court has explained, ‘‘the trial court
may set the property value at a compromise figure
when confronted with conflicting expert testimony as
to valuation . . . .’’ (Emphasis in original.) Eichman
v. J & J Building Co., 216 Conn. 443, 452, 582 A.2d 182(1990). In New Haven Savings Bank v. West Haven
Sound Development, 190 Conn. 60, 67, 459 A.2d 999(1983), the trial court ‘‘was confronted with conflicting
expert opinion testimony concerning valuation of the
subject property.’’ Although the defendants in that
case—like the defendant here—claimed on appeal that
‘‘there was ‘no evidence’ upon which the court could
have reached its valuation figure,’’ our Supreme Court
rejected that claim, stating: ‘‘When confronted with con-
flicting evidence as to valuation, the trier may properly
conclude that under all the circumstances a compro-
mise figure most accurately reflects fair market value.’’
Id., 70. The court further held that ‘‘such an approach,
which was clearly an effort to give due regard to all
circumstances, was reasonable.’’ Id.; accord Whitney
Center, Inc. v. Hamden, 4 Conn. App. 426, 429–30, 494
A.2d 624 (1985) (applying New Haven Savings Bank
and concluding that trial court properly determined that
‘‘ ‘this is a case where under all the circumstances a
compromise figure will most accurately reflect the fair
market value’ ’’). That logic applies equally to the pres-
ent case.
Contrary to the contention of the defendant, the
record before us contains ample documentary and testi-
monial evidence regarding the valuation of the property
in question. Moreover, in light of the significant dis-
agreements between the expert appraisers offered by
the parties, the court reasonably could conclude that
a compromise figure best reflected the fair market value
of the property. Accordingly, the defendant’s challenge
to that valuation fails.6
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its complaint, the plaintiff named the defendant in full as ‘‘Yeshiva
of New Haven, Inc. FKA The Gan, Inc. FKA The Gan School, Tikvah High
School and Yeshiva of New Haven, Inc.’’
2
Greer is not a party to this foreclosure action.
3
That judgment lien states in relevant part: ‘‘The judgment obtained by
[the plaintiff] was in the amount of . . . $21,749,041.10, as of June 6, 2017.
No amount of the judgment obtained by [the plaintiff] against [the defendant]
has been paid to date, and the entire amount is due thereon.’’
4
In his testimony, Wellspeak stated: ‘‘So Mr. Jones identified four primary
environmental issues. One was dealing with an underground storage tank.
The other was lead in the water for the drinking fountains. A third was lead
paint on the windows. And the fourth was asbestos in the flooring.’’
5
The plaintiff’s appraiser selected four comparable sales for purposes of
his May 30, 2019 valuation of the property: (1) the January, 2019 sale of the
Paier College of Art in Hamden for $1 million; (2) the August, 2017 sale of
Learn Academy in New London for $1.9 million; (3) the October, 2014 sale
of a Montessori school in West Hartford for $1,450,000; and (4) the June,
2014 sale of Museum Academy in Bloomfield for $2.8 million. His report
provided details on all four sales, as well as a sales comparison analysis
and market conditions adjustment. By contrast, the defendant’s appraiser
selected five different sales for purposes of his August 2, 2019 valuation of
the property: (1) the April, 2019 sale of a school property on Greene Street
in New Haven for $1.2 million; (2) the December, 2018 sale of a school
property on Clifford Street in Hartford for $1,411,000; (3) the June, 2017
sale of a school property on Whalley Avenue in New Haven for $1,525,000;
(4) the April, 2016 sale of a school property on Cedar Grove in New London
for $600,000; and (5) the June, 2015 sale of an office building on State Street
in New Haven for $552,500.
6
We are compelled to note that, in its principal appellate brief, the defen-
dant also argues that this court ‘‘should reverse the foreclosure judgment,’’
stating in full: ‘‘Since the defendant has an absolute right to substitute a
bond in lieu of the judgment lien, the foreclosure judgment should not have
entered. . . . The plaintiff did not appeal this decision of the trial court.’’
(Citation omitted.) The defendant has provided neither legal authority nor
analysis to substantiate that bald assertion. ‘‘[Our Supreme Court] repeatedly
[has] stated that [w]e are not required to review issues that have been
improperly presented to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in order to avoid abandon-
ing an issue by failure to brief the issue properly.’’ (Internal quotation marks
omitted.) Taylor v. Mucci, 288 Conn. 379, 383 n.4, 952 A.2d 776 (2008); see
also Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn.
14, 51 n.23, 861 A.2d 473 (2004) (‘‘[i]nasmuch as the plaintiffs’ briefing of the
. . . issue constitutes an abstract assertion completely devoid of citation
to legal authority or the appropriate standard of review, we exercise our
discretion to decline to review this claim as inadequately briefed’’); Russell
v. Russell, 91 Conn. App. 619, 635, 882 A.2d 98 (parties must analyze relation-
ship between facts of case and applicable law), cert. denied, 276 Conn. 924,
925, 888 A.2d 92 (2005). We therefore decline to review that abstract asser-
tion.