Opinion
1104 CA 17–02002
11-09-2018
Richard H. WARNER, Individually, and as Guardian of Mary Dorothy Warner, an Incapacitated Person, Claimant–Appellant, v. STATE of New York, Defendant–Respondent. (Claim No. 098768.) (Appeal No. 1.)
THE COSGROVE LAW FIRM, BUFFALO (EDWARD C. COSGROVE OF COUNSEL), FOR CLAIMANT–APPELLANT. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBURG OF COUNSEL), FOR DEFENDANT–RESPONDENT.
THE COSGROVE LAW FIRM, BUFFALO (EDWARD C. COSGROVE OF COUNSEL), FOR CLAIMANT–APPELLANT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBURG OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Claimant filed two separate claims, one seeking damages for personal injuries sustained by claimant's decedent, and a second seeking damages for her wrongful death (see Warner v. State of New York, 125 A.D.3d 1324, 1325, 3 N.Y.S.3d 498 [4th Dept. 2015], lv denied 25 N.Y.3d 906, 2015 WL 3620508 [2015] ). In appeal Nos. 1 and 2, claimant appeals from two judgments, entered after a nonjury trial on both claims, in which the Court of Claims dismissed the claims. We affirm in both appeals. Contrary to claimant's contention, the court applied the correct standard of "ordinary rules of negligence" and did not apply principles of qualified immunity ( Brown v. State of New York, 31 N.Y.3d 514, 519, 80 N.Y.S.3d 665, 105 N.E.3d 1246 [2018] ). We reject claimant's further contention that the court's determination is against the weight of the evidence (see generally Mosley v. State of New York, 150 A.D.3d 1659, 1660, 55 N.Y.S.3d 554 [4th Dept. 2017] ; Livingston v. State of New York, 129 A.D.3d 1660, 1660, 12 N.Y.S.3d 467 [4th Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5150696 [2015] ). The court determined that claimant failed to establish by a preponderance of the evidence that a dangerous condition existed; that even if a dangerous condition existed, the evidence did not establish that defendant had notice of it; and, in any event, that claimant failed to establish by a preponderance of the evidence that the dangerous condition was a proximate cause of the accident (see Brown, 31 N.Y.3d at 519–520, 80 N.Y.S.3d 665, 105 N.E.3d 1246 ). We conclude that the court's determinations are based upon a fair interpretation of the evidence (see Mosley, 150 A.D.3d at 1661, 55 N.Y.S.3d 554 ; Livingston, 129 A.D.3d at 1660, 12 N.Y.S.3d 467 ).