McClary v. Ward

184 A.D.2d 204

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1992
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Elliott Wilk, J., and a jury), entered March 25, 1991, awarding plaintiff title to the subject premises and other related relief, unanimously affirmed, without costs.

In light of the conflicting evidence, the jury’s determination should not be disturbed. Viewing the evidence, which raised sharp issues of credibility, in a light most favorable to plaintiff (see, Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379), there is no merit to defendants’ contention that the verdict is against the weight of the evidence (see, Loughman v Flint Co., 132 AD2d 507, 508, lv denied 70 NY2d 613). Defendants’ other argument that they are entitled to a constructive trust for repairs made to the premises is unpreserved and, in any event, also without merit, given the jury’s finding that defendants perpetrated a fraud on plaintiff (see, Ta Chun Wang v Chun Wong, 163 AD2d 300, lv denied 77 NY2d 804, cert denied — US —, 111 S Ct 2893), and that, in any event, there was "no proof of any money spent” on repairs or maintenance. Concur—Murphy, P. J., Carro, Ellerin, Kassal and Rubin, JJ.