Opinion
No. CA 09-01684.
November 12, 2010.
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.
JAMES C. COSGROVE, BUFFALO, FOR CLAIMANT-APPELLANT.
ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Present — Martoche, J.P., Sconiers, Green and Pine, JJ.
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, amended on rearg 13 AD3d 1231, aff'd 7 NY3d 159; Schmidt v State of New York, 21 Misc 3d 1114[A], 2005 NY Slip Op 52377[U], aff'd for reasons stated 39 AD3d 1237; see generally Stewart v Manhattan Bronx Surface Tr. Operating Auth., 60 AD3d 445, 445-446).