| Bryant v State of New York |
| 2010 NY Slip Op 07710 [77 AD3d 875] |
| October 26, 2010 |
| Appellate Division, Second Department |
| William Bryant, Appellant-Respondent, v State of NewYork, Respondent-Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Peter H. Schiff and Michael S.Buskus of counsel), for respondent-appellant.
In a claim to recover damages for negligence, the claimant appeals from a judgment of theCourt of Claims (Mignano, J.), dated July 21, 2009, which, upon a decision of the same courtdated May 13, 2009, made after a nonjury trial on the issues of apportionment of fault anddamages, inter alia, finding the defendant 60% at fault and finding him 40% at fault, and findingthat he sustained damages in the principal sum of $173,681, is in favor of him and against thedefendant in the principal sum of only $104,208, and the defendant cross-appeals, as limited byits brief, from stated portions of the same judgment.
Ordered that the judgment is reversed, on the facts, without costs or disbursements, and thematter is remitted to the Court of Claims for the entry of an appropriate amended judgment inaccordance herewith.
On a prior appeal (see Bryant vState of New York, 23 AD3d 592 [2005]), this Court determined that the defendantfailed to exercise due care in performing its assumed duty to screen job candidates for positionswith the claimant. Further, this Court determined that the defendant's failure to so exercise duecare was a proximate cause of the losses sustained by the claimant when one of those jobcandidates, who was hired by the claimant as a bookkeeper, embezzled funds from the claimant'scompany (id. at 593-594). The matter was remitted to the Court of Claims for a trial onthe issue of whether to apportion any fault to the claimant and, if so, to determine the percentageof fault attributable to him, and on the issue of damages (id. at 592).
On an appeal from a judgment entered after a nonjury trial, this Court "may render thejudgment it finds warranted by the facts, taking into account in a close case 'the fact that the trialjudge had the advantage of seeing the witnesses' " (Northern Westchester Professional ParkAssoc. v Town of Bedford, 60 NY2d 492, 499 [1983], quoting York Mtge. Corp. vClotar Constr. Corp., 254 NY 128, 134 [1930]). Upon our review of the record, we find thatthe apportionment of 40% of the fault to the claimant is not supported by the evidence, and that15% of the fault is appropriately apportioned to the claimant based upon, among other things, hisfailure to implement appropriate measures to [*2]safeguard thefinancial integrity of the company, such as restricting access to the company's checks. However,contrary to the claimant's contention, the finding that he sustained damages in the principal sumof $173,681 was not inadequate (seeJian Ren Chen v City of New York, 64 AD3d 542, 543 [2009]). Accordingly, wereverse the judgment and remit the matter for entry of an appropriate amended judgment in favorof the claimant in the principal sum of $147,628.85. Rivera, J.P., Skelos, Chambers and Roman,JJ., concur.