Opinion
2011-12-20
Lamar HARDWICK, et al., Claimants–Appellants, v. The 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.
Andrew H. Rosenbaum, New York, for appellants. Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, ANDRIAS, SWEENY, ROMÁN, JJ.
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 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [1983]; Green v. William Penn Life Ins. Co. of N.Y., 74 A.D.3d 570, 571–73, 902 N.Y.S.2d 542 [2010] [Saxe, J., concurring]; see also Watts v. State of New York, 25 A.D.3d 324, 809 N.Y.S.2d 5 [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.