Joseph Santos Goncalves v State of New York

Goncalves v State of New York 2003 NY Slip Op 18584 [1 AD3d 914] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Joseph S. Goncalves, Jr., Appellant,
v
State of New York, Respondent. (Claim No. 100481.)

—Appeal from a judgment of the Court of Claims (NeMoyer, J.), entered May 22, 2002, which dismissed the claim after a trial.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Claimant commenced this action, pro se, alleging that correction officers used excessive force on him while he was an inmate at Attica Correctional Facility. We exercise our discretion to treat the appeal as taken from the judgment dismissing the claim, entered after claimant took an appeal from the decision of the Court of Claims (see CPLR 5520 [c]; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]). We reject the contention of claimant that he established his claim by a preponderance of the evidence. "While it is well settled that this Court has the authority to independently consider the weight of the evidence on an appeal in a nonjury case, deference is still afforded to the findings of the Court of Claims where, as here, they are based largely on credibility determinations" (Burton v State of New York, 283 AD2d 875, 877 [2001]). Claimant failed to offer certain documents in evidence and thus has failed to preserve for our review his contention that the court erred in refusing to admit those documents in evidence. We have reviewed claimant's remaining contention and conclude that it is without merit. Present—Pigott, Jr., P.J., Pine, Hurlbutt, Kehoe and Hayes, JJ.