Kirkpatrick v. Timber Log Homes, Inc.

Appellate Division of the Supreme Court of New York

Kirkpatrick v. Timber Log Homes, Inc.

190 A.D.2d 1072, 593 N.Y.S.2d 689, 1993 N.Y. App. Div. LEXIS 1316

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 5, 1993

StatusPublished

Cited by8 cases

This text of 190 A.D.2d 1072 (Kirkpatrick v. Timber Log Homes, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirkpatrick v. Timber Log Homes, Inc., 190 A.D.2d 1072, 593 N.Y.S.2d 689, 1993 N.Y. App. Div. LEXIS 1316 (N.Y. Ct. App. 1993).

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Opinion

— Judgment unanimously affirmed without costs. Memorandum: We reject defendant’s argument that the verdict in favor of plaintiffs was against the weight of the evidence. A jury verdict "should not be set aside as against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence * * * Moreover, when the issue at trial involves the credibility of conflicting expert testimony, the resolution of that conflict is 'a matter peculiarly within the province of the jury’ ” (Martin v Seaman, 184 AD2d 996, lv denied 80 NY2d 759, quoting Shaw v Binghamton Lodge No. 852, 155 AD2d 805, 806; see also, Halvorsen v Ford Motor Co., 132 AD2d 57, 60, lv denied 71 NY2d 805). We conclude, upon our review of the record, that the jury reasonably could have credited the testimony of plaintiffs’ expert that plaintiffs’ log home was properly constructed according to defendant’s plans and specifications, and that plaintiffs’ damages were proximately caused by defendant’s inadequate roof design and the inadequate or defective sealant system designed and provided by defendant.

We further conclude that the jury award of $105,000 was supported by the evidence. The jury could have concluded, as testified to by plaintiffs’ real estate appraiser, that the home was unmarketable in its present state. The jury’s determination that the fair market value of plaintiffs’ home in an undamaged condition was $105,000 was within the range of appraisal testimony. Finally, if defendant desired to receive credit for the value of the land and of undamaged items, it had the burden of providing proof of value (see, Jenkins v Etlinger, 55 NY2d 35). That it failed to do. (Appeal from Judgment of Supreme Court, Genesee County, Morton, J.— Breach of Warranty.) Present — Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.

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— Judgment unanimously affirmed without costs. Memorandum: We reject defendant’s argument that the verdict in favor of plaintiffs was against the weight of the evidence. A jury verdict "should not be set aside as against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence * * * Moreover, when the issue at trial involves the credibility of conflicting expert testimony, the resolution of that conflict is 'a matter peculiarly within the province of the jury’ ” (Martin v Seaman, 184 AD2d 996, lv denied 80 NY2d 759, quoting Shaw v Binghamton Lodge No. 852, 155 AD2d 805, 806; see also, Halvorsen v Ford Motor Co., 132 AD2d 57, 60, lv denied 71 NY2d 805). We conclude, upon our review of the record, that the jury reasonably could have credited the testimony of plaintiffs’ expert that plaintiffs’ log home was properly constructed according to defendant’s plans and specifications, and that plaintiffs’ damages were proximately caused by defendant’s inadequate roof design and the inadequate or defective sealant system designed and provided by defendant.

We further conclude that the jury award of $105,000 was supported by the evidence. The jury could have concluded, as testified to by plaintiffs’ real estate appraiser, that the home was unmarketable in its present state. The jury’s determination that the fair market value of plaintiffs’ home in an undamaged condition was $105,000 was within the range of appraisal testimony. Finally, if defendant desired to receive credit for the value of the land and of undamaged items, it had the burden of providing proof of value (see, Jenkins v Etlinger, 55 NY2d 35). That it failed to do. (Appeal from Judgment of Supreme Court, Genesee County, Morton, J.— Breach of Warranty.) Present — Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.

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Bluebook (online)

190 A.D.2d 1072, 593 N.Y.S.2d 689, 1993 N.Y. App. Div. LEXIS 1316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkpatrick-v-timber-log-homes-inc-nyappdiv-1993.

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