Opinion
No. 134.
Decided June 8, 2006.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered November 28, 2005. The Appellate Division (1) reversed, on the law, a judgment of the Court of Claims (Richard E. Sise, J.), which, after a nonjury trial on the issue of liability, had dismissed the claim, (2) reinstated the claim, and (3) remitted to the Court of Claims for a trial on the issue of whether to apportion any fault to the plaintiff and, if so, the percentage of fault attributable to the plaintiff, and on the issue of damages. The following question was certified by the Appellate Division: "Was the decision and order of this court, dated November 28, 2005, properly made?"
Bryant v. State of New York, 23 AD3d 592, appeal dismissed.
Eliot Spitzer, Attorney General, Albany ( Michael S.Buskus, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for appellant.
Bergstein Ullrich, LLP, Chester ( Christopher D. Watkins and Stephen Bergstein of counsel), for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
Defendant's appeal should be dismissed, without costs, upon the ground that the Appellate Division did not have the power to grant leave to appeal to the Court of Appeals on a certified question in these circumstances (see NY Const, art VI, § 3 [b] [ 3], [ 4]; CPLR 5601 [c]; 5602 [b] [1]; Maynard v Greenberg, 82 NY2d 913, 914). The apportionment of fault is a component of the liability determination, which was the subject of the initial trial.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), appeal dismissed, without costs, in a memorandum.