Herbert J. Stein, etc., respondent, v. Jeffrey Einhorn, et al., appellants. (2010)

Argued-May 28, 2010

DECISION & ORDER

In an action, inter alia, to recover treble damages pursuant to RPAPL 861, the defendants appeal from a judgment of the Supreme Court, Suffolk County (Baisley, J.), entered November 5, 2009, which, upon the denial of their motion pursuant to CPLR 4401(a) for judgment as a matter of law, upon a jury verdict finding that the plaintiff had sustained damages in the principal sum of $105,654, and upon a finding that the plaintiff was entitled to treble damages, is in favor of the plaintiff and against them in the principal sum of $316,962.

ORDERED that the judgment is affirmed, with costs.

The expert testimony of the plaintiff's nursery and horticultural design expert was properly admitted since it was “based on facts in the record and his own analysis, not speculation” (Plainview Water Dist. v. Exxon Mobil Corp., 66 AD3d 754, 755;  see Shi Pei Fang v. Heng Sang Realty Corp., 38 AD3d 520, 521).

The Supreme Court properly denied the defendants' motion pursuant to CPLR 4401(a) for judgment as a matter of law.   Affording the plaintiff every favorable inference from the evidence submitted, there was a rational process by which the jury could find in favor of the plaintiff (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556).   The verdict was supported by legally sufficient evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499).   Moreover, the jury's finding was based on a fair interpretation of the evidence, and thus was not against the weight of the evidence (see Nicastro v. Park, 113 A.D.2d 129, 134-135).

Finally, the Supreme Court properly calculated prejudgment interest on the treble damages awarded pursuant to RPAPL 861 (see Axtell v. Kurey, 222 A.D.2d 804;  Cunningham v. Brischke, 167 A.D.2d 604;  Property Owners Assn. of Harbor Acres v Ying, 137 A.D.2d 509).

SKELOS, J.P., ANGIOLILLO, DICKERSON and LEVENTHAL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court