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Ruth S. Harris, Plaintiff-Appellant v. William Stoelzel and Shirley Stoelzel

June 8, 2012

RUTH S. HARRIS, PLAINTIFF-APPELLANT,
v.
WILLIAM STOELZEL AND SHIRLEY STOELZEL, DEFENDANTS-RESPONDENTS.



Appeal from a judgment of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered March 30, 2011.

Harris v Stoelzel

Decided on June 8, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.

The judgment dismissed the complaint upon a jury verdict.

CAMARDO LAW FIRM, P.C., AUBURN (KEVIN M. COX OF COUNSEL), FOR PLAINTIFF-APPELLANT. LAW OFFICE OF NORMAN J. CHIRCO, AUBURN (NORMAN J. CHIRCO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, a judgment declaring that she acquired an easement by prescription on three portions of defendants' property, for the benefit of her property. Following a trial, the jury returned a verdict in favor of defendants. Plaintiff failed to preserve for our review her contention that the verdict is against the weight of the evidence inasmuch as she failed to make a timely motion to set aside the verdict on that ground (see Murdoch v Niagara Falls Bridge Commn., 81 AD3d 1456, 1457, lv denied 17 NY3d 702; Homan v Herzig [appeal No. 2], 55 AD3d 1413, 1413-1414). In any event, it cannot be said that "the evidence so preponderated in favor of the plaintiff that [the verdict] could not have been reached on any fair interpretation of the evidence" (Martinez v Wascom, 57 AD3d 1415, 1416 [internal quotation marks omitted]; see Manouselis v Woodworth Realty, LLC, 83 AD3d 801; see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746).

Entered: June 8, 2012 Frances E. Cafarell Clerk of the Court

20120608

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