Opinion
CA 04-00294.
Decided June 14, 2004.
Appeal from a judgment of the Court of Claims (Renee Forgensi Minarik, J.), entered July 23, 2003. The judgment, after a nonjury trial, dismissed the claim in a personal injury action.
CHELUS, HERDZIK, SPEYER, MONTE PAJAK, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR CLAIMANTS-APPELLANTS.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MICHAEL S. BUSKUS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, KEHOE, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: On appeal from a judgment dismissing their claim against defendant, the State of New York (State), claimants contend that the Court of Claims (John P. Lane, J.) erred in denying their cross motion seeking partial summary judgment on liability and that the verdict is against the weight of the evidence. We conclude that claimants failed to meet their burden on their cross motion because the evidence submitted by them in support thereof does not establish as a matter of law that the State's snowplow operator acted in reckless disregard for the safety of others ( see generally Wilson v. State of New York, 269 A.D.2d 854, affd sub nom. Riley v. County of Broome, 95 N.Y.2d 455; Bliss v. State of New York, 95 N.Y.2d 911; cf. Kearns v. Piatt, 277 A.D.2d 677, 678-680). We further conclude that the verdict is not against the weight 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'" ( Goncalves v. State of New York, 1 A.D.3d 914, 914, quoting Burton v. State of New York, 283 A.D.2d 875, 877). Here, the determination of the Court of Claims (Renee Forgensi Minarik, J.) that the State's snowplow operator did not act "in `reckless disregard for the safety of others' is fully supported by the record" ( Wilson, 269 A.D.2d at 855, quoting Vehicle and Traffic Law § 1103 [b]; see McDonald v. State of New York, 176 Misc.2d 130, 143).