Poplar Disposal Service, Inc. v. Roth

103 A.D.2d 1039, 478 N.Y.S.2d 432, 1984 N.Y. App. Div. LEXIS 19739

Opinion

— Judgment and order unanimously affirmed, without costs. Memorandum: The jury’s verdict was well within the range of testimony presented and should not be disturbed on appeal, particularly since valuation of the business rested primarily upon the credibility of the experts and their valuation techniques (see, e.g., Beechey v De Sorbo, 53 AD2d 727). While defendants would have been entitled to an instruction that proof of plaintiffs’ own estimate of the business’ value, as evidenced by their May, 1980 proposal, should be accorded great weight subject to explanation (see, e.g., Matter of Tillman, 259 NY 133; Prager v New Jersey Fid. & Plate Glass Ins. Co., 245 NY 1; Smith v Brocton Preserving Co., 251 App Div 102, 104), their failure to request such an instruction precludes them from arguing on appeal that the jury’s verdict is excessive solely because it considerably exceeds plaintiffs’ proposal (see, e.g., Moore v Leaseway Transp. Corp., 49 NY2d 720, 722; Wallace v City of New York, 86 AD2d 510, 511; Wozniak v 110 South Main St. Land & Dev. Improvement Corp., 61 AD2d 848, 849). (Appeal from judgment and order of Supreme Court, Monroe County, John J. Conway, J. — contract.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Moule, JJ.