Verizon N.Y., Inc. v State of New York

Verizon N.Y., Inc. v State of New York 2010 NY Slip Op 08277 [78 AD3d 1597] November 12, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Verizon New York, Inc., Appellant, v State of New York, Respondent.

—[*1] James C. Cosgrove, Buffalo, for claimant-appellant. Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), for defendant-respondent.

Appeal from a judgment of the Court of Claims (Jeremiah J. Moriarty, III, J.), entered July 8, 2009. The interlocutory judgment apportioned liability 35% to defendant and 65% to claimant.

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

Memorandum: Claimant commenced this action alleging that defendant damaged its underground telecommunication line while performing "sidewalk/bridge" repairs in the City of Niagara Falls. After a nonjury trial on the issue of liability, the Court of Claims determined that both parties were negligent and apportioned liability 65% to claimant and 35% to defendant.

We conclude upon our review of the record that the court properly attributed a greater portion of the fault to claimant (see Denio v State of New York, 11 AD3d 914, 915 [2004], amended on rearg 13 AD3d 1231 [2004], affd 7 NY3d 159 [2006]; Schmidt v State of New York, 21 Misc 3d 1114[A], 2005 NY Slip Op 52377[U] [2005], affd for reasons stated 39 AD3d 1237 [2007]; see generally Stewart v Manhattan & Bronx Surface Tr. Operating Auth., 60 AD3d 445, 445-446 [2009]). Present—Martoche, J.P., Sconiers, Green and Pine, JJ.