Robert E. Kennedy, Appellant,
John M. Nimons et al., Respondents.
Office of David Tennant PLLC, Rochester (David H. Tennant of
counsel), for appellant.
Rowlands & LeBrou, PLLC, Latham (Douglas J. Rose of
counsel), for respondents.
Before: Mulvey, J.P., Devine, Aarons and Pritzker, JJ.
from a judgment of the Supreme Court (Zwack, J.), entered
April 20, 2018 in Rensselaer County, upon a verdict rendered
in favor of defendants.
disputes the location of the western boundary line of his
property located in Rensselaer County. Defendants'
property abuts along the entire northern and western borders
of plaintiff's property. Plaintiff commenced this action
seeking confirmation of the western boundary's location.
This Court previously affirmed Supreme Court's denial of
cross motions for summary judgment (121 A.D.3d 1229');">121 A.D.3d 1229 ).
Following a trial, the jury was charged with determining
whether, by either deed description or under the doctrine of
practical location, plaintiff had correctly located the
western boundary of his property. The jury returned a verdict
that, by either method of determination, the western boundary
was incorrectly located. Plaintiff appeals.
argument that the verdict was based on legally insufficient
evidence was not preserved and the verdict is not against the
weight of the evidence. A party that does not move for a
directed verdict or to set aside a verdict fails to preserve
its legal sufficiency argument for appellate review (see
Miller v Miller, 68 N.Y.2d 871, 873 ;
Smetanick v Erie Ins. Group, 16 A.D.3d 957, 958
). As plaintiff failed to move in either instance, a
legal sufficiency challenge remains unpreserved for our
review. A verdict "may... be set aside as against the
weight of the evidence if the evidence so preponderated in
favor of the [plaintiff] that the verdict could not have been
reached on any fair interpretation of the evidence"
(Towne v Kingsley, 163 A.D.3d 1309, 1311 
[internal quotation marks and citations omitted]). Here, the
evidence did not so preponderate in plaintiff's favor
that the jury could not have reached its verdict.
addition to a 10-year time requirement, the doctrine of
practical location requires "a clear demarcation of a
boundary line and proof that there is mutual acquiescence to
the boundary by the parties such that it is definitely and
equally known, understood and settled" (McMahon v
Thornton, 69 A.D.3d 1157, 1160  [internal
quotation marks and citation omitted]; see Lounsbury v
Yeomans, 139 A.D.3d 1230, 1231 ). Further,
"[w]here land is unimproved and uncultivated, the mere
running of a line through the woods, ex parte, by one of the
owners, so long as such line is not settled upon and mutually
adopted by the adjoining owners as a division line, is an
immaterial fact. In such a case, until the adjoining owner
shows his [or her] assent to it, it would amount to a mere
expression of the individual opinion of the owner who ran the
line" (Riggs v Benning, 290 A.D.2d 716, 717
 [internal quotation marks, emphasis and citation
omitted] [finding that a landowner's inaction did not
constitute assent to a boundary line allegedly created when a
neighboring landowner made a path, planted trees and posted
signs along that line]). Here, plaintiff testified to his use
of the land in a manner similar to Riggs, but did
not offer evidence of the assent of defendants or their
predecessors-in-interest to the location of the boundary
line. Absent such evidence, it would have been unreasonable
for the jury to reach any other conclusion on the issue of
determine the western boundary of plaintiff's parcel as
described by deed, the jury viewed multiple surveys of the
property in question. These documents had been prepared by
different surveyors, at different times, at the behest of
various persons. The jury heard testimony from the surveyors
themselves describing the methodology that each used in
locating the western boundary, including deed research, the
significance of monuments, landmarks and indicia of use or
possession, and the surveyors' reliance on previous
surveys. The surveyors offered competing professional
opinions explaining why their location of the western
boundary line was correct and the others' location of the
line was not. Giving deference to the jury's
determination as to the credibility of the witnesses, the
jury's verdict is not against the weight of the evidence.
asserts that he acquired the disputed property by adverse
possession. However, the jury was not charged with deciding a
claim of adverse possession, despite the parties'
previous recognition of the issue in their pleadings (see
Kennedy v Nimons, 121 A.D.3d at 1230). Plaintiff had the
opportunity to advance this claim at trial and chose not to.
We decline plaintiff's request that, in the interest of
justice, we conform the pleadings to the proof, sua sponte,
to accommodate a claim of adverse possession (see
CPLR 3025 [c]; compare River Val. Assoc. v Consolidated
Rail Corp., 182 A.D.2d 974, 976 ; D'Antoni
v Goff, 52 A.D.2d 973, 974 ; Harbor Assoc. v
Asheroff, 35 A.D.2d 667, 668 , lv denied
27 N.Y.2d 490');">27 N.Y.2d 490 ).
jury received defective instructions as to the application of
CPLR 4522. In that regard, Supreme Court charged the jury
that "[a] 2002 survey map prepared by Surveyor Dickinson
is in evidence. The survey was filed in 2002 with the
Rensselaer County Clerk. The law provides that a map which
has been on file with the County [Clerk] for more than 
years is presumed to be accurate unless rebutted by other
credible survey or expert opinion. In deciding whether the
presumption of accuracy of the 2002 survey has been rebutted
by other evidence you will apply the rules that I have
already given you and will continue to give you about the
evaluation of evidence."
4522 states that "[a]ll maps, surveys and official
records affecting real property, which have been on file in
the state in the office of... any county clerk... for more
than  years, are prima facie evidence of their
contents." In analyzing similar statutory language from
another hearsay exception contained in the same article of
the CPLR, the Court of Appeals held that "[p]resumptive
evidence is, ... like the prima facie evidence to which
CPLR 4518 (c) refers, evidence which permits but does not
require the trier of fact to find in accordance with the
presumed fact, even though no contradictory evidence has been
presented. It is, in short, not a presumption which must be
rebutted but rather an inference, like the inference of
negligence denominated res ipsa loquitor" (People v
Mertz, 68 N.Y.2d 136, 148  [internal quotation
marks and citations omitted]; see People v Perez,
130 A.D.2d 779, 780 , lv denied 70 N.Y.2d 716');">70 N.Y.2d 716
; New Dimension Realty 005 v Sincere, 189
Misc.2d 32, 33 [App Term, 2d Dept 2001]).
Court's charge required the jury to locate the western
boundary of plaintiff's property as depicted in the 2002
survey unless plaintiff offered evidence that rebutted the
survey's presumed accuracy. The jury should have been
instructed that, in the absence of contradictory evidence, it
was permitted but not required to adopt the western boundary
as depicted in the 2002 survey. Hence, Supreme Court
committed reversible error because the effect of the charge