Hardwick v State of New York

Hardwick v State of New York 2011 NY Slip Op 09179 Decided on December 20, 2011 Appellate Division, First 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.

Decided on December 20, 2011
Gonzalez, P.J., Mazzarelli, Andrias, Sweeny, Román, JJ.
6388 100497

[*1]Lamar Hardwick, et al., Claims No. Claimants-Appellants, The

v

State of New York, Defendant-Respondent.




Andrew H. Rosenbaum, New York, for appellants.
Eric T. Schneiderman, Attorney General, Albany (Paul
Groenwegen of counsel), for respondent.

Judgment of the Court of Claims of the State of New York (W. Brooks DeBow, J.), entered January 6, 2010, after a nonjury trial, upon a finding that the injured claimant was 75% at fault and defendant 25% at fault, unanimously modified, on the facts, to apportion liability 60% to claimant and 40% to defendant, and otherwise affirmed, without costs.

Since the trial court's apportionment of liability was based on a credibility determination, our review is limited to whether the court arrived at its conclusion by means of a fair interpretation of the evidence (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Green v William Penn Life Ins. Co. of N.Y., 74 AD3d 570, 571-73 [2010] [Saxe, J., concurring]; see also Watts v State of New York, 25 AD3d 324 [2006]). The record supports the finding that claimant bears some responsibility for his injuries. However, it does not support the finding that the dangerous condition was open and obvious. Thus, we modify the apportionment accordingly.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2011

CLERK