Opinion
July 13, 1984
Appeal from the Supreme Court, Monroe County, John J. Conway, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Moule, JJ.
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 A.D.2d 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 N.Y. 133; Prager v. New Jersey Fid. Plate Glass Ins. Co., 245 N.Y. 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 N.Y.2d 720, 722; Wallace v City of New York, 86 A.D.2d 510, 511; Wozniak v. 110 South Main St. Land Dev. Improvement Corp., 61 A.D.2d 848, 849).